Blueprint








EXHIBIT 10-4







 


AMENDED
AND RESTATED


 


CERTIFICATE
OF DESIGNATIONS, PREFERENCES AND RIGHTS


 


OF


 


SERIES
D CONVERTIBLE PREFERRED STOCK


 


OF


 


VISUALANT,
INCORPORATED


 


 


(Pursuant
to Section NRS 78.1955 of the


Nevada
Corporations Code)


 


Visualant,
Incorporated, a corporation organized and existing under the laws
of the State of Nevada (the “Corporation”), hereby
certifies that, pursuant to authority vested in the Board of
Directors of the Corporation by Article 4.3 of the Certificate of
Incorporation of the Corporation, the following resolutions were
adopted on _________________, 2017 by the Board of Directors of the
Corporation (the “Board”) pursuant to Section
NRS 78.1955 of the Nevada Corporations Code:


 


“RESOLVED
that, pursuant to authority vested in the Board of Directors of the
Corporation by Article 4.3 of the Corporation’s Certificate
of Incorporation, out of the total authorized number of 5,000,000
shares of preferred stock, par value $0.001 per share (the
“Preferred Stock”), there shall be designated a series
of up to 3,906,250 shares which shall be issued in and constitute a
single series to be known as “Series D Convertible Preferred
Stock” (hereinafter called the “Series D
Preferred”). This Amended and Restated Certificate of
Designation supersedes and replaces the Certificate of Designation
filed with the Nevada Secretary of State on November 8, 2016. The
shares of Series D Preferred shall have the voting powers,
designations, preferences and other special rights, and the
qualifications, limitations and restrictions thereof, set forth
below:


 


1.        
Certain
Definitions.


 


As used
in this Amended and Restated Certificate of Designations,
Preferences and Rights of Series D Preferred of the Corporation
(the “Certification of Designations”), the following
terms shall have the respective meanings set forth
below:


 


“Affiliate”, as applied to
any Person, means any other Person directly or indirectly
controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms
“controlling”, “controlled by” and
“under common control with”), as applied to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or
by contract or otherwise.


 



 

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“Approved Stock Plan”
means any employee benefit plan, equity incentive plan or other
issuance, employment agreement or option grant or similar agreement
which has been approved by the Board, pursuant to which the
Corporation’s securities may be issued to any employee,
consultant, officer or director for services provided to the
Corporation.


 


“Bloomberg” means
Bloomberg Financial Markets.


 


“Business Day” means any
day, other than a Saturday or Sunday or other day, on which banks
in the City of New York are authorized or required by law or
executive order to remain closed.


 


“Common Stock” means the
common stock, par value $0.001 per share, of the Corporation,
including the stock into which the Series D Preferred Stock is
convertible, and any securities into which the Common Stock may be
reclassified.


 


“Conversion Price” means
$0.70, subject to adjustment as provided herein.


 


“Conversion Shares” means
the shares of Common Stock into which the Series D Preferred Stock
is convertible.


 


“Convertible Securities”
means any stock or securities (other than Options) directly or
indirectly convertible into or exercisable or exchangeable for
shares of Common Stock.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“Excepted Issuance” means:
(i) Corporation’s issuance of Common Stock in full or partial
consideration in connection with a strategic merger, acquisition,
consolidation or purchase of substantially all of the securities or
assets of a corporation or other entity, so long as such issuances
are not for the purpose of raising capital and which holders of
such securities or debt are not at any time granted registration
rights, (ii) the Corporation’s issuance of Common Stock or
the issuances or grants of options to purchase Common Stock to
employees, directors, and consultants, pursuant to an Approved
Stock plan at or above Fair Market Value, (iii) securities upon the
exercise, exchange or
conversion of any securities exercisable, exchangeable for or convertible into
shares of Common Stock issued and outstanding as of the date hereof
and pursuant to terms and conditions that have not been amended
since the date hereof.


 


 “Fair Market
Value” means of Common
Stock or Options to purchase Common Stock on any given date means
the fair market value of such Common Stock or Options to purchase
Common Stock as determined in good faith by the committee which
serves as administrator of the Corporation’s Approved Stock
Plan, or in the absence of such committee, the Board of Directors,
based on the reasonable application of a reasonable valuation
method that is consistent with Section 409A of the Code. If the
Common Stock is admitted to trade on a national securities exchange
or quotation system such as the Over the Counter Market Place, the
determination shall be made by reference to the closing price
reported on such exchange or quotation system.  If there is no
closing price for such date, the determination shall be made by
reference to the last date preceding such date for which there is a
closing price.


 



 

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“Holder” or
“Holders” means the holder
or holders of the Series D Preferred Stock.


 


“Junior Securities” means
the Common Stock and all other Common Stock Equivalents of the
Corporation other than those securities which are explicitly senior
or pari passu to the Series D Preferred in dividend rights or
liquidation preference.


 


“Options” means any
rights, warrants or options to subscribe for or purchase shares of
Common Stock or Convertible Securities.


 


“Person” means an
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency
thereof.


 


“Principal Market” means
the OTCQB.


 


“Required Holders” means,
as of any date, the holders of at least 85% of the Series D
Preferred Stock outstanding as of such date.


 


“Senior Securities” means
the Company’s Series A Convertible Preferred Stock and Series
C Convertible Preferred Stock and any other securities which are
explicitly senior or pari passu to the Series D Preferred Stock in
dividend rights or liquidation preference.


 


“Series D Stated Value”
means $0.70.


 


“Subscription
Agreement” means any one of a series of certain
Preferred Stock and Warrant Purchase Agreements by and among the
Corporation and each of the investors party thereto.


 


“Trading Day” means any
day on which the Common Stock are traded on the Principal Market,
or, if the Principal Market is not the principal trading market for
the Common Stock, then on the principal securities exchange or
securities market on which the Common Stock are then traded;
provided that “Trading Day” shall not include any day
on which the Common Stock are scheduled to trade on such exchange
or market for less than 4.5 hours or any day that the Common Stock
are suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not
designate in advance the closing time of trading on such exchange
or market, then during the hour ending at 4:00:00 p.m., New York
time).


 



 

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“Weighted Average Price”
means, for any security as of any date, the dollar volume-weighted
average price for such security on the Principal Market during the
period beginning at 9:30:01 a.m., New York time (or such other time
as the Principal Market publicly announces is the official open of
trading), and ending at 4:00:00 p.m., New York time (or such other
time as the Principal Market publicly announces is the official
close of trading), as reported by Bloomberg through its
“Volume at Price” function or, if the foregoing does
not apply, the dollar volume-weighted average price of such
security in the over-the-counter marketplace for such security
during the period beginning at 9:30:01 a.m., New York time (or such
other time as the Principal Market publicly announces is the
official open of trading), and ending at 4:00:00 p.m., New York
time (or such other time as the Principal Market publicly announces
is the official close of trading), as reported by Bloomberg, or, if
no dollar volume-weighted average price is reported for such
security by Bloomberg for such hours, the average of the highest
closing bid price and the lowest closing ask price of any of the
market makers for such security as reported in the “pink
sheets” by OTC Markets LLC. If the Weighted Average Price
cannot be calculated for a security on a particular date on any of
the foregoing bases, the Weighted Average Price of such security on
such date shall be the fair market value as mutually determined by
the Corporation and the Holder. If the Corporation and the Holder
are unable to agree upon the fair market value of such security,
then such dispute shall be resolved by an independent nationally
recognized accounting firm chosen by mutual agreement of the
parties. All such determinations shall be appropriately adjusted
for any stock dividend, stock split, stock combination or other
similar transaction during the applicable calculation
period.


 


2.       
Dividends.
Commencing on the date of the issuance of any such shares of Series
D Preferred (each respectively an “Issuance Date”),
each outstanding share of Series D Preferred will accrue cumulative
dividends (“Dividends”), at a rate equal to 8.0% per
annum, subject to adjustment as provided in this Amended and
Restated Certificate of Designations (“Dividend Rate”),
of the Series D Stated Value. Dividends will be payable with
respect to any shares of Series D Preferred Stock upon any of the
following: (a) upon conversion of such shares in accordance with
Section 4 and (b) when, as and if otherwise declared by the Board
of Directors of the Corporation. In the event that the Corporation
shall at any time pay a dividend on the Common Stock (other than a
dividend payable solely in shares of Common Stock) or any other
class or series of capital stock of the Corporation, the
Corporation shall, at the same time, pay to each holder of Series D
Preferred a dividend equal to the dividend that would have been
payable to such holder if the shares of Series D Preferred held by
such holder had been converted into Common Stock on the date of
determination of holders of Common Stock entitled to receive such
dividends without regard to the limitations set forth in Section
4(e).


 


3.         
Liquidation. Upon
any liquidation, dissolution or winding-up of the Corporation,
whether voluntary or involuntary (a “Liquidation”),
after the satisfaction in full of the debts of the Corporation and
the payment of any liquidation preference owed to the holders of
Senior Securities, the Holders of the Series D Preferred shall be
senior to the Common Stock in dividend rights or liquidation
preference and any class of Preferred created thereafter, unless
specifically stated otherwise (on an as-converted basis) in the net
assets of the Corporation. Neither the consolidation nor merger of
the Corporation into or with any other entity or entities nor the
consolidation or merger of any entity or entities into the
Corporation shall be deemed to be a liquidation within the meaning
of this Section 3, but the sale, lease or conveyance of all or
substantially all the Corporation’s assets shall be deemed a
liquidation within the meaning of this Section 3.


 



 

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4.          
Conversion.


 

(a)           
Voluntary
Conversion. Subject to the terms and conditions of this
Section 4, the Holder of any shares of Series D Preferred shall
have the right, at its option at any time, to convert any such
shares of Series D Preferred into such number of fully paid and
nonassessable whole shares of Common Stock as is obtained by
multiplying the number of shares of Series D Preferred so to be
converted by the Series D Stated Value and dividing the result by
the Conversion Price then in effect. Each holder of Series D
Preferred who desires to convert the same into shares of Common
Stock shall provide notice to the Corporation, by mail, fax, or
electronic mail to the Corporation’s then principal office,
of a written notice of conversion (“Conversion
Notice”). Each Conversion Notice shall specify the number of
shares of Series D Preferred to be converted and the date on which
such conversion is to be effected, which date may not be prior to
the date the Holder delivers by facsimile such Conversion Notice to
the Corporation (the “Conversion Date”). If no
Conversion Date is specified in a Conversion Notice, the Conversion
Date shall be the date that such Conversion Notice to the
Corporation is deemed delivered hereunder. The calculations and
entries set forth in the Conversion Notice shall control in the
absence of manifest or mathematical error. To effect conversions,
as the case may be, of shares of Series D Preferred, a Holder shall
not be required to surrender the certificate(s) representing such
shares of Series D Preferred to the Corporation unless all of the
shares of Series D Preferred represented thereby are so converted,
in which case the Holder shall deliver the certificate representing
such shares of Series D Preferred promptly following the applicable
Conversion Date. Shares of Series D Preferred converted into Common
Stock in accordance with the terms hereof shall be canceled and
shall not be reissued.


 

(b)           
Mandatory
Conversion. The Series D Preferred will automatically
convert (“Automatic Conversion”) upon (i) the listing
of the Company’s common stock on the Nasdaq, the New York
Stock Exchange, or the NYSE MKT. Upon the triggering of Automatic
Conversion, the Company shall send written notice (the
“Automatic Conversion Notice”) to each holder of record
of Series D Preferred specifying the date (the “Effective
Date”) upon which such conversion is to become effective
(which Effective Date shall not be more than thirty (30) days after
the event which causes such Automatic Conversion). On or after the
Effective Date, each holder of Series D Preferred shall surrender
to the Company the certificate or certificates representing the
Series D Preferred owned by such holder as of the Effective Date in
the manner and place set forth in the Automatic Conversion Notice
and thereupon the Company shall, as soon as practicable thereafter,
issue and deliver to the holders of the Series D Preferred
certificate(s) for the number of shares of Common Stock issuable in
connection with such Automatic Conversion ; (ii) the Conversion
Shares are eligible to be sold without restriction pursuant to
Securities and Exchange Commission (“SEC”) Rule 144 or
a registration statement registering the Conversion Shares for
resale has been declared effective by the SEC and remains effective
at the time of conversion; and (iii) the average Weighted Average
Price of the Common Stock is at least three (3) times the
Conversion Price then in effect for 20 consecutive trading days
with average daily trading volume during such period, as reported
by Bloomberg, equal to or greater than $200,000 (the “Average
Daily Trading Volume Amount”). The Corporation shall exercise
its rights under this Section 4(b) by providing a Conversion notice
to any or all Holders consistent with Section 4(a) above.
Notwithstanding the foregoing, in no
event shall the Holder be entitled to convert the Series D in
excess of the number of shares of Common Stock issuable upon the
conversion that would result in beneficial ownership by the Holder
of more than4.99% of the outstanding shares of Common Stock at the
time of such conversion.


 



 

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(c)           Conversion
Mechanics. Within three (3) Trading Days after the
Conversion Date, the Corporation shall pay to the Holder in cash
any accrued and unpaid dividends on the shares of Series D
Preferred so converted and shall issue and deliver, or cause to be
issued and delivered, to the Holder, registered in such name or
names (with address and tax identification number) as such Holder
may direct, subject to compliance with applicable laws to the
extent such designation shall involve a transfer, a certificate or
certificates for the number of whole shares of Common Stock
issuable upon the conversion of such share or shares, or fraction
thereof, of Series D Preferred.


 


(d)           Failure
to Convert. If the Corporation shall fail for any reason or
no reason to issue to a Holder of Series D Preferred a certificate
representing the Conversion Shares within three (3) Trading Days of
the Conversion Date and register such shares of Common Stock on the
Corporation’s share register or to credit the Holder’s
balance account with the Depository Trust Corporation for such
number of shares of Common Stock to which the Holder is entitled
upon such conversion, and if on or after such Trading Day the
Holder purchases, or another Person purchases on the Holder’s
behalf or for the Holder’s account (in an open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of shares of Common Stock
issuable upon such conversion that the Holder anticipated receiving
from the Corporation (a “Buy-In”), then the Corporation
shall, within three (3) Business Days after the Holder’s
written request and in the Holder’s discretion, (i) pay in
cash to the Holder the amount, if any, by which (A) the
Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
exceeds (B) the amount obtained by multiplying (x) the number of
shares of Common Stock that the Corporation was required to deliver
to the Holder in connection with the conversion at issue by (y) the
price at which the sell order giving rise to such purchase
obligation was executed or (ii) at the option of the Holder, either
reissue (if surrendered) the shares or fraction of a share of
Series D Preferred equal to the number of shares or fraction of a
share of Series D Preferred Stock submitted for conversion (in
which case such conversion shall be deemed rescinded) or deliver to
such holder the number of shares of Common Stock that would have
been issued if the Corporation had timely complied with its
delivery requires under Section 4(c). The Holder shall provide
the Corporation written notice indicating the amounts payable to
the Holder in respect of the Buy-In and, upon request of the
Corporation, evidence of the amount of such loss.


 


 


 



 

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(e)           
Fractional Shares.
No fractional shares of Common Stock shall be issued upon
conversion of the Series D Preferred into Common Stock. In the
event a fractional share of Common Stock would be issued on
conversion, the number of shares of Common Stock to be issued shall
be rounded down to the nearest whole share.


 

(f)           
Issue Limitation.
The Corporation shall not effect a conversion of the Series D
Preferred, and the Holder of any shares of Series D Preferred shall
not have the right to voluntarily convert its shares of Series D
Preferred, to the extent that after giving effect to such exercise,
such Person (together with such Person’s Affiliates) would
beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the shares of Common Stock outstanding
immediately after giving effect to such conversion. For purposes of
the foregoing sentence, the aggregate number of shares of Common
Stock beneficially owned by such Person and its affiliates shall
include the number of shares of Common Stock issuable upon the
conversion of the shares of Series D Preferred with respect to
which the determination of such sentence is being made, but shall
exclude shares of Common Stock which would be issuable upon (i)
conversion of the remaining, unconverted shares of Series D
Preferred beneficially owned by such Person and its Affiliates and
(ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Corporation beneficially
owned by such Person and its Affiliates (including, without
limitation, any convertible notes or convertible preferred stock or
warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein. Except as set forth
in the preceding sentence, for purposes of this paragraph,
beneficial ownership shall be calculated in accordance with Section
13(d) of the Exchange Act. For purposes hereof, in determining the
number of outstanding shares of Common Stock, the Holder may rely
on the number of outstanding shares of Common Stock as reflected in
the most recent of (1) the Corporation’s most recent Form
10-K, Form 10-Q, Current Report on Form 8-K or other public filing
with the Securities and Exchange Commission, as the case may be,
(2) a more recent public announcement by the Corporation or (3) any
other notice by the Corporation or the Corporation’s transfer
agent setting forth the number of shares of Common Stock
outstanding. For any reason at any time, upon the written or oral
request of the Holder, the Corporation shall within two (2)
Business Days confirm to the Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of the Corporation,
including shares of Series D Preferred, by the Holder and its
Affiliates since the date as of which such number of outstanding
shares of Common Stock was reported. By written notice to the
Corporation, the Holder may from time to time increase or decrease
the Maximum Percentage to any other percentage not less than 4.99%
and not in excess of 9.99% specified in such notice; provided that
(i) any such increase or decrease will not be effective until the
sixty-first (61st) day after such notice is delivered to the
Corporation, and (ii) any such increase or decrease will apply only
to the Holder. The provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity
with the terms of this Section 4(f) to correct this paragraph (or
any portion hereof) which may be defective or inconsistent with the
intended beneficial ownership limitation herein contained or to
make changes or supplements necessary or desirable to properly give
effect to such limitation.


 



 

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5.           
Adjustment of Conversion
Price. The Conversion Price and the number of Conversion
Shares shall be adjusted from time to time as follows:


 


(a)           
In case the Corporation shall at any time (A) declare any dividend
or distribution on its Common Stock or other securities of the
Corporation other than the Series D Preferred, (B) split or
subdivide the outstanding Common Stock, (C) combine the outstanding
Common Stock into a smaller number of shares, or (D) issue by
reclassification of its Common Stock any shares or other securities
of the Corporation, then in each such event the Conversion Price
shall be adjusted proportionately so that the Holders of Series D
Preferred shall be entitled to receive the kind and number of
shares or other securities of the Corporation which such Holders
would have owned or have been entitled to receive after the
happening of any of the events described above had such shares of
Series D Preferred been converted immediately prior to the
happening of such event (or any record date with respect thereto).
Such adjustment shall be made whenever any of the events listed
above shall occur. An adjustment made to the Conversion Price
pursuant to this paragraph 5(a) shall become effective immediately
after the effective date of the event.


 


(b)           For
so long as Series D Preferred is outstanding, if the Corporation
issues shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock, except for Excepted
Issuances, for a consideration at a price per share, or having a
conversion, exchange or exercise price per share less than the
Conversion Price of the Series D Preferred immediately in effect
prior to such sale or issuance, then immediately prior to such sale
or issuance the Conversion Price of the Series D Preferred shall be
reduced to such other lower price. For purposes of this adjustment,
the issuance of any security carrying the right to convert such
security directly or indirectly into shares of Common Stock or of
any warrant, right or option to purchase Common Stock shall result
in an adjustment to the Conversion Price upon the issuance of the
above-described security and again upon the issuance of shares of
Common Stock upon exercise of such conversion or purchase rights if
such issuance is at a price lower than the then applicable
Conversion Price. Common Stock issued or issuable by the
Corporation for no consideration or for consideration that cannot
be determined at the time of issue will be deemed issuable or to
have been issued for $0.001 per share of Common Stock. The
reduction of the Conversion Price described in this paragraph is in
addition to other rights of the Holder described in this Amended
and Restated Certificate of Designations and the Subscription
Agreement.


 


6.           Rights
Upon Distribution of Assets.


 


 



 

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(a)           If
the Corporation shall distribute to all holders of Common Stock
(and not to the Holders) evidences of its indebtedness or assets
(including cash and cash dividends) or rights or warrants to
subscribe for or purchase any security other than the Common Stock
(including, without limitation, any distribution of cash, stock or
other securities, property or options by way of a dividend, spin
off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction), then in each such case
the Conversion Price shall be adjusted by multiplying the
Conversion Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the
Weighted Average Price determined as of the record date mentioned
above, and of which the numerator shall be such Weighted Average
Price on such record date less the then per share fair market value
at such record date of the portion of such assets or evidence of
indebtedness so distributed applicable to one outstanding share of
the Common Stock as determined by the Board in good faith. In
either case the adjustments shall be described in a statement
provided to the Holder of the portion of assets or evidences of
indebtedness so distributed or such subscription rights applicable
to one share of Common Stock. Such adjustment shall be made
whenever any such distribution is made and shall become effective
immediately after the record date mentioned above.


 


7.           Purchase
Rights. In addition to any adjustments pursuant to Section 5
above, if at any time the Corporation grants, issues or sells any
Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record
holders of any class of Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire, upon
the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the Holder
had held the number of shares of Common Stock acquirable upon
complete conversion of the Holder’s Series D Preferred
(without regard to any limitations on the conversion thereof)
immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights, or, if no such
record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale
of such Purchase Rights.


 


8.           Notices.
Upon any adjustment of the Conversion Price, then, and in each such
case the Corporation shall give written notice thereof by first
class mail, postage prepaid, addressed to each Holder of Series D
Preferred at the address of such holder as shown on the books of
the Corporation, which notice shall state the Conversion Price
resulting from such adjustment, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation
is based. In addition, in case at any time:


 


(1) the
Corporation shall declare any dividend upon its Common Stock
payable in cash or stock or make any other distribution to the
holders of its Common Stock;


 


(2) the
Corporation shall offer for subscription pro rata to the holders of
its Common Stock any additional shares of such stock of any class
or other rights;


 


(3)
there shall be any capital reorganization or reclassification of
the capital stock of the Corporation, or a consolidation or merger
of the Corporation with, or a sale of all or substantially all its
assets to, another corporation; or


 


(4)
there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Corporation;


 



 

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then,
in any one or more of said cases, the Corporation shall give, by
first class mail, postage prepaid, addressed to each holder of any
shares of Series D Preferred at the address of such holder as shown
on the books of the Corporation, (a) at least fifteen (15) days
prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining
rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least fifteen (15) days
prior written notice of the date when the same shall take place.
Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common Stock
shall be entitled thereto, and such notice in accordance with the
foregoing clause (b) shall also specify the date on which the
holders of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may
be.


 


9.        
Stock to be
Reserved. The Corporation will at all times reserve and keep
available out of its authorized but unissued Common Stock solely
for the purpose of issuance upon the conversion of the Series D
Preferred as herein provided, such number of shares of Common Stock
equal to two hundred percent (200%) of the amount of Common Stock
as shall then be issuable upon the conversion of all outstanding
shares or fractions of shares of Series D Preferred. All shares of
Common Stock which shall be so issued shall be duly and validly
issued and fully paid and nonassessable and free from all liens,
duties and charges arising out of or by reason of the issue thereof
(including, without limitation, in respect of taxes) and, without
limiting the generality of the foregoing, the Corporation covenants
that it will from time to time take all such action as may be
requisite to assure that the par value per share of the Common
Stock is at all times equal to or less than the effective
Conversion Price. The Corporation will take all such action within
its control as may be necessary on its part to assure that all such
shares of Common Stock may be so issued without violation of any
applicable law or regulation, or of any requirements of any
national securities exchange upon which the Common Stock of the
Corporation may be listed. The Corporation will not take any action
which results in any adjustment of the Conversion Price if after
such action the total number of shares of Common Stock issued and
outstanding and thereafter issuable upon exercise of all Options
and conversion of Convertible Securities, including upon conversion
of the Series D Preferred, would exceed the total number of shares
of such class of Common Stock then authorized by the
Corporation’s Certificate of Incorporation.


 


10.         
Effect of Reacquisition of
Shares Upon Redemption, Repurchase, Conversion or Otherwise.
Shares of Series D Preferred that have been issued and reacquired
in any manner, whether by redemption, repurchase or otherwise or
upon any conversion of shares of Series D Preferred to Common
Stock, shall thereupon be retired and shall have the status of
authorized and unissued shares of Preferred undesignated as to
series, and may be redesignated as any series of Preferred Stock
and reissued.


 


11.         
Issue Tax. The
issuance of certificates for shares of Common Stock upon conversion
of the Series D Preferred shall be made without charge to the
holders thereof for any issuance tax, stamp tax, transfer tax, duty
or charge in respect thereof, provided that the Corporation shall
not be required to pay any tax, duty or charge which may be payable
in respect of any transfer involved in the issuance and delivery of
any certificate in a name other than that of the holder of the
Series D Preferred which is being converted.


 



 

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12.          
Closing of Books.
The Corporation will at no time close its transfer books against
the transfer of any Series D Preferred or of any shares of Common
Stock issued or issuable upon the conversion of any shares of
Series D Preferred in any manner which interferes with the timely
conversion of such Series D Preferred; provided, however, nothing
herein shall be construed to prevent the Corporation from setting
record dates for the holders of its securities.


 


13.          
Voting. In addition
to any class voting rights provided by law and this Amended and
Restated Certificate of Designation, the Holders of Series D
Preferred shall have the right to vote together with the holders of
Common Stock as a single class on any matter on which the holders
of Common Stock are entitled to vote (including the election of
directors). With respect to the voting rights of the Holders of the
Series D Preferred pursuant to the preceding sentence, each Holder
of Series D Preferred shall be entitled to cast one vote for each
share of Common Stock that would be issuable to such Holder upon
the conversion of all the shares of Series D Preferred Stock held
by such Holder (after giving effect to the restrictions of Section
4(e)) on the record date for the determination of stockholders
entitled to vote.


 


14.           
Certain
Restrictions. In addition to any other vote of the Holders
of Series D Preferred Stock required by law or by the Certificate
of Incorporation, without the prior consent of the Required Holders
holding at least 75% of the Series D Preferred Stock then
outstanding, given in person or by proxy, either in writing or at a
special meeting called for that purpose, at which meeting the
holders of the shares of such Series D Preferred Stock shall vote
together as a class, the Corporation will not:


 


(a)           authorize,
create, designate, establish or issue (whether by merger or
otherwise) (i) an increased number of shares of Series D Preferred
Stock or (ii) any other class or series of capital stock ranking
senior to or on parity with the Series D Preferred Stock as to any
preference, including not limited to dividends or upon liquidation
or reclassify any shares of Common Stock into shares having any
preference or priority as to dividends or upon liquidation superior
to or on parity with any such preference or priority of Series D
Preferred Stock or reclassify any shares of Common Stock or any
other class or series of capital stock into shares having any
preference or priority as to dividends or upon liquidation superior
to or on parity with any such preference or priority of Series D
Preferred Stock;


 


(b)           adopt
a plan for the liquidation, dissolution or winding up of the
affairs of the Corporation or any recapitalization plan (whether
occurring by merger, consolidation or otherwise), file any petition
seeking protection under any federal or state bankruptcy or
insolvency law or make a general assignment for the benefit of
creditors;


 



 

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(c)           amend,
alter or repeal, whether by merger, consolidation or otherwise, the
Certificate of Incorporation or Bylaws of the Corporation or the
Resolutions contained in this Amended and Restated Certificate of
Designations of the Series D Preferred Stock and the powers,
preferences, privileges, relative, participating, optional and
other special rights and qualifications, limitations and
restrictions thereof, which would adversely affect any right,
preference, privilege or voting power of the Series D Preferred
Stock, or which would increase or decrease the amount of authorized
shares of the Series D Preferred Stock or of any other series of
preferred stock ranking senior to the Series D Preferred Stock,
with respect to the payment of dividends (whether or not such
series of preferred stock is cumulative or noncumulative as to
payment of dividends) or upon liquidation;


 


(d)           directly
or indirectly, declare or pay any dividend (other than dividends
permitted pursuant to Section 2 and dividends payable in shares of
Common Stock but only to the extent that such stock dividend
results in an adjustment of the Conversion Price pursuant to
Section 5 hereof) or directly or indirectly purchase, redeem,
repurchase or otherwise acquire or permit any Subsidiary to redeem,
purchase, repurchase or otherwise acquire (or make any payment to a
sinking fund for such redemption, purchase, repurchase or other
acquisition) any share of Common Stock, Option or Convertible
Security or any other class or series of the Corporation’s
capital stock (except for the shares of Series D Preferred Stock in
accordance with Section 15 hereof or for shares of Common
Stock repurchased from current of former employees, consultants, or
directors upon termination of service in accordance with plans
approved by the Board) whether in cash, securities or property or
in obligations of the Corporation or any Subsidiary;


 

(e)           
enter into a Variable Rate Transaction (as defined below), or issue
any secured or unsecured debt securities. “Variable Rate
Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the
right to receive, additional shares of Common Stock either (A) at a
conversion price, exercise price or exchange rate or other price
that is based upon, and/or varies with, the trading prices of or
quotations for the shares of Common Stock at any time after the
initial issuance of such debt or equity securities or (B) with a
conversion, exercise or exchange price that is subject to being
reset at some future date after the initial issuance of such debt
or equity security or upon the occurrence of specified or
contingent events directly or indirectly related to the business of
the Company or the market for the Common Stock or (ii) enters into
any agreement, including, but not limited to, an equity line of
credit, whereby the Company may sell securities at a future
determined price; or

 


(f)           agree
to do any of the foregoing.


 


15.         
Redemption. The
Series D Preferred Stock shall not be redeemable at the option of
the Corporation.


 


16.         
No Waiver. Except
as otherwise modified or provided for herein, the Holders of Series
D Preferred Stock shall also be entitled to, and shall not be
deemed to have waived, any other applicable rights granted to such
holders under the Nevada Corporations Code.


 



 

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17.          
No Impairment. The
Corporation will not, through any reorganization, transfer of
assets, consolidation, merger scheme or arrangement, 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 time in good faith assist in the carrying out of all the
provisions herein and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights
and liquidation preferences granted hereunder of the holders of the
Series D Preferred Stock against impairment. Without limiting the
generality of the foregoing, the Corporation (i) shall not increase
the par value of any shares of Common Stock receivable upon
conversion of the Series D Preferred Stock above the Conversion
Price then in effect, (ii) shall take all such actions as may be
necessary or appropriate in order that the Corporation may validly
and legally issue fully paid and non-assessable shares of Common
Stock upon conversion of the Series D Preferred Stock, and (iii)
shall, so long as any shares or fraction of a share of Series D
Preferred stock remain outstanding, take all action necessary to
reserve and keep available out of its authorized and unissued
shares of Common Stock, solely for the purpose of effecting the
conversion of the Series D Preferred Stock, 100% of the number of
shares of Common Stock issuable upon conversion of the Series D
Preferred Stock then outstanding (without regard to any limitations
on conversion).


 


18.
           No Preemptive Rights. No Holder
of any shares of Series D Preferred Stock shall have any preemptive
right to subscribe to any issue of the same or other capital stock
of the Corporation.


 


19.          
Amendment; Waiver.
Any term of the Series D Preferred Stock may be amended or waived
(including the adjustment provisions included in Section 5 hereof)
upon the written consent of the Corporation and the Holders of at
least 85% of the Series D Preferred Stock then outstanding;
provided, however, that the number of Conversion Shares issuable
hereunder and the Conversion Price may not be amended, and the
right to convert the Series D Preferred Stock may not be altered or
waived, without the written consent of the holders of all of the
Series D Preferred Stock then outstanding.


 


20.          
Action By Holders.
Any action or consent to be taken or given by the holders of the
Series D Preferred Stock may be given either at a meeting of the
Holders of the Series D Preferred Stock called and held for such
purpose or by written consent.


 


 


 


 


 


 


 



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IN
WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Designations, Preferences and Rights this
_________ day of _______________, 2017.


 


 


	
 

	


VISUALANT,
INCORPORATED


 


 


 


By:
_____________________


Name:
Ronald P. Erickson


Title:
President and Chief Executive Officer

  



	
 

	
 







 






 


 


 


 


 


 


 


 


 


[SIGNATURE
PAGE TO VISUALANT, INCORPORATED CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS]


 



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