matechexh4_3.htm


    
      
 

    Exhibit 4.3

     

     

    CERTIFICATE
OF DESIGNATION
OF
THE RIGHTS, PREFERENCES, PRIVILEGES
AND
RESTRICTIONS, WHICH HAVE NOT BEEN SET
FORTH
IN THE CERTIFICATE OF INCORPORATION
OR
IN ANY AMENDMENT THERETO,
OF
THE 
CLASS
E CONVERTIBLE PREFERRED STOCK
OF
MATERIAL
TECHNOLOGIES, INC.

(Pursuant to Section 151 of the General
Corporation Law of Delaware)


     

    
                The
undersigned, Robert M. Bernstein and Joel R. Freedman, do hereby certify
that:

          A.       They
are the duly elected and acting Chief Executive Officer and Secretary,
respectively, of Material Technologies, Inc., a Delaware corporation (the
“Corporation”).

          B.       Pursuant
to the Unanimous Written Consent of the Board of Directors of the Corporation
dated January 25, 2007, the Board of Directors duly adopted the following
resolutions:

          WHEREAS,
the Certificate of Incorporation of the Corporation authorizes a class of stock
designated as Preferred Stock, with a par value of $0.001 per share (the
“Preferred Class”), comprising Fifty Million (50,000,000) shares and provides
that the Board of Directors of the Corporation may fix the terms, including any
dividend rights, dividend rates, conversion rights, voting rights, rights and
terms of any redemption, redemption, redemption price or prices, and liquidation
preferences, if any, of the Preferred
Class;

          WHEREAS,
the Board of Directors believes it in the best interests of the Corporation to
create a series of preferred stock consisting of 60,000 shares and designated as
the “Class E Convertible Preferred Stock” having certain rights, preferences,
privileges, restrictions and other matters relating to the Class E Convertible
Preferred
Stock.

          NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby fix and
determine the rights, preferences, privileges, restrictions and other matters
relating to the Class E Convertible Preferred Stock as
follows:

          1.       Definitions. 
For purposes of this Certificate of Designation, the following definitions shall
apply:

                    1.1       “Board”
shall mean the Board of Directors of the
Corporation.

                    1.2 
     “Corporation” shall mean Material Technologies, Inc., a
Delaware Corporation.



      


 

      
        
           

        

        
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                    1.3       “Common
Stock” shall mean the Class A Common Stock, $0.001 par value per share, of the
Corporation.  The authorized common stock of the Corporation consists of a
Class A Common Stock and a Class B Common
Stock.

                    1.4 
     “Common Stock Dividend” shall mean a stock
dividend declared and paid on the Common Stock that is payable in shares of
Common
Stock.

                    1.5 
     “Distribution” shall mean the transfer of cash or
property by the Corporation to one or more of its stockholders without
consideration, whether by dividend or otherwise (except a dividend in shares of
Corporation's
stock).

                    1.6       “Holder”
shall mean a holder of the Class E Convertible Preferred
Stock.

                    1.7       “Original
Issue Date” shall mean the date on which the first share of Class E Convertible
Preferred Stock is issued by the
Corporation.

                    1.8 
     “Original Issue Price” shall mean $19.50 per share for
the Class E Convertible Preferred
Stock.

                    1.9 
     “Class E Convertible Preferred Stock” shall mean the
Class E Convertible Preferred Stock, $0.001 par value per share, of the
Corporation.

                    1.10      “Subsidiary”
shall mean any corporation or limited liability corporation of which at least
fifty percent (50%) of the outstanding voting stock or membership interests, as
the case may be, is at the time owned directly or indirectly by the Corporation
or by one or more of such subsidiary
corporations.

          2.       Dividend
Rights.

                    2.1       In
each calendar quarter, the holders of the then outstanding Class E Convertible
Preferred Stock shall be entitled to receive noncumulative dividends in an
amount equal to five percent (5%) of the Original Issue Price per annum. 
All dividends may be accrued by the Corporation until the a conversion pursuant
to Section 4.  No dividends (other than a Common Stock Dividend) shall be
paid, and no Distribution shall be made, with respect to the Common Stock unless
dividends in such amount shall have been paid or declared and set apart for
payment to the holders of the Class E Convertible Preferred Stock
simultaneously.

                    2.2       Participation
Rights. Dividends shall be declared pro rata on the Common Stock and the Class E
Convertible Preferred Stock on a pari passu basis according to the number of
shares of Common Stock held by such holders, where each holder of shares of
Class E Preferred Stock is to be treated for this purpose as holding the number
of shares of Common Stock to which the holders thereof would be entitled if they
converted their shares of Class E Convertible Preferred Stock at the time of
such dividend in accordance with Section 4
hereof.

                    2.3       Non-Cash
Dividends. Whenever a dividend or Distribution provided for in this Section 2
shall be payable in property other than cash (other than a Common
Stock


      
        
           

        

        
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        Dividend), the
value of such dividend or Distribution shall be deemed to be the fair market
value of such property as determined in good faith by the
Board.

          3.       Liquidation
Rights.  The holders of the Class E Convertible Preferred Stock will
not receive any preference in the event of any liquidation, dissolution or
winding up of the Corporation; whether voluntary or
involuntary.

          4.       Conversion
Rights.

                    (a)       Conversion
of Preferred Stock.  Each share of Class E Convertible Preferred Stock
shall be convertible, at any time beginning one (1) year after the Original
Issue Date, into that number of fully paid and nonassessable shares of Common
Stock of the Company described in section 4(b) below.  On the date which is
three (3) years after the Original Issue Date, one-fourth (1/4) of the
then-outstanding shares of Class E Convertible Preferred Stock shall
automatically be converted in accordance with this Section 4, with an additional
one-fourth to be converted on the date which is four and five years after the
Original Issue Date, respectively, and the remaining balance converted on the
date which is six years from the Original Issue
Date.

                    (b)       Determination
of Number of Shares of Common Stock Upon Conversion.  The number of shares
of Common Stock into which each share of Class E Convertible Preferred Stock may
be converted shall be determined by dividing the Original Issue Price by the
Conversion Price (determined as hereinafter provided) in effect at the time of
conversion (the “Conversion
Shares”).

                    (c)       Determination
of Initial Conversion Price.  The conversion price per share (the
“Conversion Price”) at which shares of Common Stock shall initially be issuable
upon conversion of the Class E Convertible Preferred Stock shall be equal to the
average closing bid price for the ten (10) trading days prior to the date the
Corporation receives a conversion notice from Holder, which receipt may be via
facsimile
transmission.

                    (d)       Procedures
for Exercise of Conversion Rights.  The holders of any shares of Class E
Convertible Preferred Stock may exercise their conversion rights as to all such
shares or any part thereof by delivering to the Corporation during regular
business hours, or at such other place as may be designated by the Corporation,
the certificate or certificates for the shares to be converted, duly endorsed
for transfer to the Corporation, accompanied by written notice stating that the
holder elects to convert such shares.  Conversion shall be deemed to have
been effected on the date when such delivery is made, and such date is referred
to herein as the “Conversion Date.”  Within thirty (30) days following the
Conversion Date, the Corporation shall issue and deliver to the holder, or upon
the written order of such holder, at such office or other place designated by
the Corporation, a certificate or certificates for the number of full shares of
Common Stock to which such holder is entitled and a check for cash with respect
to any fractional interest in a share of Common Stock as provided in section
4(e) below.  The holder shall be deemed to have become a shareholder of
record on the Conversion Date, and the applicable Conversion Price shall be the
Conversion Price in effect on the delivery date of the conversion notice. 
Upon conversion of only a portion of the number of shares of Class
E


        
          
             

          

          
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Convertible
Preferred Stock represented by a certificate surrendered for conversion, the
Corporation shall issue and deliver to or upon the written order of the holder
of the certificate so surrendered for conversion, at the expense of the
Corporation, a new certificate covering the number of shares of Class E
Convertible Preferred Stock representing the unconverted portion of the
certificate so
surrendered.

                    (e)       No
Fractional Shares.  No fractional shares of Common Stock or scrip shall be
issued upon conversion of shares of Class E Convertible Preferred Stock. 
If more than one share of Class E Convertible Preferred Stock shall be
surrendered for conversion at any one time by the same holder, the number of
full shares of Common Stock issuable upon conversion thereof shall be computed
on the basis of the aggregate number of shares of Class E Convertible Preferred
Stock so surrendered.  Instead of any fractional shares of Common Stock
which would otherwise be issuable upon conversion of any shares of Class E
Convertible Preferred Stock, the Corporation shall pay a cash adjustment in
respect of such fractional interest equal to the fair market value of such
fractional interest as determined by the Corporation's Board of
Directors.

                    (f)       Payment
of Taxes for Conversions. The Corporation shall pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of shares of
Common Stock on conversion pursuant hereto of Class E Convertible Preferred
Stock.  The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that in which the shares
of Class E Convertible Preferred Stock so converted were registered, and no such
issue or delivery shall be made unless and until the person requesting such
issue has paid to the Corporation the amount of any such tax, or has
established, to the satisfaction of the Corporation, that such tax has been
paid.

                    (g)       Reservation
of Common Stock.  The Corporation shall at all times reserve and keep
available, out of its authorized but unissued Common Stock, solely for the
purpose of effecting the conversion of the Class E Convertible Preferred Stock,
the full number of shares of Common Stock deliverable upon the conversion of all
shares of all series of preferred stock from time to time
outstanding.

                    (h)       Registration
or Listing of Shares of Common Stock.  If any shares of Common Stock to be
reserved for the purpose of conversion of shares of Class E Convertible
Preferred Stock require registration or listing with, or approval of, any
governmental authority, stock exchange or other regulatory body under any
federal or state law or regulation or otherwise, before such shares may be
validly issued or delivered upon conversion, the Corporation will in good faith
and as expeditiously as possible endeavor to secure such registration, listing
or approval, as the case may be.  This subsection shall not obligate the
Corporation to prepare and file a resale registration statement with the
Securities and Exchange
Commission.

                    (i)       Status
of Common Stock Issued Upon Conversion.  All shares of Common Stock which
may be issued upon conversion of the shares of Class E Convertible Preferred
Stock will upon issuance by the Corporation be validly issued, fully paid and
nonassessable and free


    
      
         

      

      
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from all
taxes, liens and charges with respect to the issuance thereof, and their resale
will be subject to the terms and conditions of Rule 144 promulgated under the
Securities Act of
1933.

                    (j)       Status
of Converted Preferred Stock.  In case any shares of Class E Convertible
Preferred Stock shall be converted pursuant to this section 4, the shares so
converted shall be canceled and shall not be issuable by the
Corporation.

          5.       Adjustment
of Conversion
Price.

                    5.1       General
Provisions.  In case, at any time after the date hereof, of any capital
reorganization, or any reclassification of the stock of the Corporation (other
than a change in par value or 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), or of the sale or other disposition of all or
substantially all the properties and assets of the Corporation as an entirety to
any other person, the shares of Class E Convertible Preferred Stock shall, after
such reorganization, reclassification, consolidation, merger, sale or other
disposition, be convertible into the kind and number of shares of stock or other
securities or property of the Corporation or of the entity resulting from such
consolidation or surviving such merger or to which such properties and assets
shall have been sold or otherwise disposed to which such holder would have been
entitled if immediately prior to such reorganization, reclassification,
consolidation, merger, sale or other disposition it had converted its shares of
Class E Convertible Preferred Stock into Common Stock.  The provisions of
this section 5.1 shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales or other dispositions. 
The provisions of this section 5 shall not affect the conversion of the Class E
Convertible Preferred Stock in the event of a forward or reverse stock
split.

                    5.2       No
Impairment.  The Corporation will not, through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, including amending this Certificate of Designation,
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 5
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 Class E Convertible Preferred
Stock against impairment.  This provision shall not restrict the
Corporation from amending its Articles of Incorporation in accordance with the
General Corporation Law of Delaware and the terms
hereof.

          6.       Notices. 
Any notices required by the provisions of this Certificate of Designation to be
given to the holders of shares of Class E Convertible Redeemable Preferred Stock
shall be deemed given if sent by facsimile or overnight courier to the address
appearing on the books of the Corporation, and shall be conclusively deemed
given at the time of delivery if made during normal business hours, otherwise
notice shall be deemed given on the next business day.


      
        
           

        

        
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          7.       Voting
Provisions.  The Class E Convertible Preferred Stock shall have ten
(10) votes per share on all matters to be voted on by the shareholders of the
Corporation.

          IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Designation of
Class E Convertible Preferred Stock to be duly executed by its Chief Executive
Officer and attested to by its Secretary this 25th day of January,
2007.


By:                  
/s/ Robert M.
Bernstein                        

           
Robert M. Bernstein, Chief Executive
Officer


By:                  
/s/ Joel R.
Freedman                            

           
Joel R. Freedman, Secretary


     

     

     

     

     

     

     

     

     

     

    
      
         

      

      
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