Aquentium Inc – ‘10-K’ for 9/30/97 – EX-4

As of:  Monday, 1/12/98   ·   For:  9/30/97   ·   Accession #:  918997-98-2   ·   File #:  0-23402

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Annual Report   —   Form 10-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K        Annual Report                                         43    207K 
 2: EX-4        Instrument Defining the Rights of Security Holders     6     24K 
 3: EX-10       Material Contract                                     12     43K 
 4: EX-27       Financial Data Schedule (Pre-XBRL)                     1      6K 

EX-4   —   Instrument Defining the Rights of Security Holders

EX-4
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                                                                 EXHIBIT 4.1

CERTIFICATE OF DESIGNATION OF PREFERENCES AND 
RIGHTS OF SERIES A CONVERTIBLE PREFERRED STOCK  
    OF
   WATERPUR INTERNATIONAL INC.

          Pursuant to Section 151 of the General Corporation Law
  of the State of Delaware

         The undersigned, being the duly elected Chief Executive Officer and
Secretary of WaterPur International Inc., a corporation organized and existing  
under  the General Corporation Law of the State of Delaware in accordance with  
the provisions of Section 103 thereof (the "Corporation"), DO HEREBY CERTIFY:   

        That pursuant to the authority conferred upon the Board of Directors
by  the Certificate of Incorporation of the Corporation, as amended, the Board  
of Directors has duly adopted the following recitals and resolutions:           

        "WHEREAS,  the  Certificate of Incorporation of this corporation, as
amended,  provides  for a class of shares known as Preferred Stock, issuable
from time to time in one or more series;                                      

        WHEREAS, the Board of Directors of this corporation is authorized to
determine  or  alter  the  rights,  preferences, privileges and restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock, to
fix  the number of shares constituting any such series, and to determine the
designation thereof, or any of them; and                                      

    WHEREAS, the Board of Directors of this corporation desires, pursuant to
its  authority, to determine and fix the rights, preferences, privileges and
restrictions relating to the initial series of Preferred Stock and the number 
of shares constituting and the designation of such initial series;            

    NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors hereby fixes
and determines the designation of, the number of shares constituting, and the 
rights,  preferences,  privileges  and restrictions relating to, the initial
series of Preferred Stock as follows:                                         

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        a.      Designation.  The initial series of Preferred Stock shall be
designated "Series A Preferred Stock".                                          

   b.      Number.  The number of shares constituting the Series A
Preferred Stock  shall  be  8,500,000.    None of the Series A Preferred Stock  
have been issued.                                                               

      c.      No Dividend Rights.  The holders of the Series A Preferred
Stock shall  at  no  time  during  the  existence  of the corporation be        
entitled to receive any dividends from the corporation.                         

d.      Liquidation Preference.                             

             (i)  In the event of any liquidation, dissolution or winding up
of  the  Corporation,  whether  voluntary  or  involuntary, the holders of the  
Series  A  Preferred  Stock  shall  each  be entitled to receive, prior and in  
preference  to  any  distribution of any of the assets or surplus funds of the  
Corporation  to  the  holders  of  the  Common Stock or any class or series of  
shares except any class or series of shares which is entitled to priority over  
the  Series  A  Preferred  Stock,  by  reason  of  their  ownership thereof, a  
liquida-tion  preference  (the "Liquidation Preference") in the amount of $.45  
per  share  (as  adjusted for any stock dividends, combinations or splits with  
respect to such shares).  If upon the occurrence of such event, the assets and  
funds thus distributed among the holders of the Series A Preferred Stock shall  
be  insufficient to permit the payment to such holders of the full Liquidation  
Preference,  then  the  entire  assets  and  funds  of the Corporation legally  
available  for  distribution shall be distributed ratably among the holders of  
the Series A Preferred Stock in proportion to the shares of Series A Preferred  
Stock then held by them.                                                        

                (ii)  For purposes of this Section(d), (A)any acquisition of
the  Corporation  by means of merger or other form of corporate reorganization  
in which outstanding shares of the Corporation are exchanged for securities or  
other  consideration  issued,  or  caused  to  be  issued,  by  the  acquiring  
corporation  or its subsidiary (other than a mere reincorporation transaction)  
or  (B)a  sale  of  all or substantially all of the assets of the Corporation,  
shall  be  treated  as  a  liquidation,  dissolution  or  winding  up  of  the  
Corporation  and  shall  entitle  the  holders of Series A Preferred Stock and  
Common  Stock  to receive at the closing in cash, securities or other property  
(valued  as  provided  in  Section(d)(iii)  below)  amounts  as  specified  in  
Section(d)(i) above.                                                            

                       (iii)  Whenever the distribution provided for in this
Section(d)  shall  be  payable  in securities or property other than cash, the  
value  of  such distribution shall be the fair market value of such securities  
or other property as determined in good faith by the Board of Directors.        

e.     Voting Rights; Directors.                            

              (i)  In addition to any other rights provided for herein or by
law,  each  holder  of shares of Series A Preferred Stock shall be entitled to  
the  number  of votes equal to the number of shares of Common Stock into which  
such  shares  of  Series  A  Preferred Stock could be converted and shall have  
voting  rights  and powers equal to the voting rights and powers of the Common  
Stock  (except  as  otherwise expressly provided herein or as required by law,  
voting together with the Common Stock as a single class) and shall be entitled  
to  notice  of  any stockholders' meeting in accordance with the Bylaws of the  
Corporation.    Fractional  votes  shall  not,  however,  be permitted and any  
fractional  voting  rights resulting from the above formula (after aggregating  
all  shares  into which shares of Series A Preferred Stock held by each holder  
could  be  converted)  shall  be  rounded  to  the  nearest whole number (with  
one-half being rounded upward).                                                 

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               (ii)  In the event that the holders of the Series A Preferred
Stock  are required to vote as a class, the affirmative vote of holders of not  
less  than  two-thirds  of  the outstanding shares of Series A Preferred Stock  
shall  be  required  to  approve  each such matter to be voted upon and if any  
matter  is  approved  by  such  requisite  percentage  of  holders of Series A  
Preferred  Stock,  such  matter  shall  bind all holders of Series A Preferred  
Stock.                                                                          

                (iii)  So long as any shares of the Series A Preferred Stock
remain  outstanding,  the  consent  of  two-thirds  of the holders of the then  
outstanding Series A Preferred Stock, voting as one class, either expressed in  
writing or at a meeting called for that purpose, shall be necessary to repeal,  
amend  or  otherwise change this Certificate of Designation of Preferences and  
Rights  or the Certificate of Incorporation of the Corporation, as amended, in  
a  manner  which  would  alter  or  change  the  powers,  preferences,  rights  
privileges,  restrictions and conditions of the Series A Preferred Stock so as  
to adversely affect the Series A Preferred Stock.                               

              (iv)  Each share of the Series A Preferred Stock shall entitle
the holder thereof to one vote on all matters to be voted on by the holders of  
the Series A Preferred Stock, as set forth above.                               

       f.     Conversion.  The holders of the Series A Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):                    

              (i)  Right to Convert.  Each share of Series A Preferred Stock
shall  be  convertible, at the option of the holder thereof, at any time after  
twelve  (12) months from the date on which the initial mailing of the Series A  
Preferred  Stock  to the shareholders of Casmyn Corp., a Colorado corporation,  
shall occur (the "Distribution Date"), at the office of the Corporation or any  
transfer  agent  for  such  stock,  into  two (2) fully paid and nonassessable  
shares  of Common Stock on and subject to the terms and conditions hereinafter  
set  forth.    The conversion rate in effect at any time herein is hereinafter  
referred to as the "Conversion Rate".                                           

               (ii)  Automatic Conversion.  Each share of Series A Preferred
Stock  shall  automatically  be  converted  into shares of Common Stock at the  
then-effective  Conversion  Rate  on  the  date  eighteen (18) months from the  
Distribution Date.                                                              

              (iii)  Mechanics of Conversion.  Before any holder of Series A
Preferred  Stock  shall  be entitled to convert the same into shares of Common  
Stock,  he  shall  surrender  the  certificate  or certificates therefor, duly  
endorsed,  at  the office of the Corporation or of any transfer agent for such  
stock, and shall give written notice to the Corporation at such office that he  
elects  to convert the same and shall state therein the name or names in which  
he  wishes  the  certificate  or certificates for shares of Common Stock to be  
issued.    The Corporation shall, as soon as practicable thereafter, issue and  
deliver  at  such  office  to  such  holder  of  Series  A  Preferred Stock, a  
certificate  or certificates for the number of shares of Common Stock to which  
he  shall  be  entitled as aforesaid.  Such conversion shall be deemed to have  
been  made immediately prior to the close of business on the date of surrender  
of  the  shares of Series A Preferred Stock to be converted, and the person or  
persons  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.                                    

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                    (iv)  Adjustments to Conversion Rate for Combinations or
Subdivisions  of Common Stock.  In the event that this Corporation at any time  
or  from time to time after the original issue date of the Series A Pre-ferred  
Stock  shall  effect  a  subdivision of the outstanding shares of Common Stock  
into  a  greater  number  of  shares  of  Common  Stock  (by  stock  split,     
reclassification or otherwise than by payment of a dividend in Common Stock or  
in  any right to acquire Common Stock), or in the event the outstanding shares  
of  Common  Stock  shall  be  combined or consolidated, by reclassification or  
otherwise,  into  a lesser number of shares of Common Stock, then the Series A  
Conversion  Rate in effect immediately prior to such event shall, concurrently  
with  the  effectiveness  of  such  event,  be  proportionately  decreased  or  
increased, as appropriate.                                                      

                (v)  Adjustment for Reclassification and Reorganization.  If
the  Common  Stock  issuable  upon  conversion of the Series A Preferred Stock  
shall  be  changed  into the same or a different number of shares of any other  
class or classes of stock, whether by capital reorganization, reclassification  
or  otherwise  (other than a subdivision or combination of shares provided for  
in  Section(f)(iv)  above  or  a merger or other reorganization referred to in  
Section(d)(ii)  above),  the  Series  A  Conversion Rate then in effect shall,  
concurrently  with  the  effectiveness  of  such  reorganization  or            
reclassification,  be proportionately adjusted so that the Series A Pre-ferred  
Stock  shall  be  convertible  into, in lieu of the number of shares of Common  
Stock  which  the  holders  would  otherwise  have been entitled to receive, a  
number  of  shares  of  such other class or classes of stock equivalent to the  
number  of  shares  of Common Stock that would have been subject to receipt by  
the holders upon conversion of the Series A Preferred Stock immediately before  
that change.                                                                    

             (vi)  No Impairment.  The Corporation will not, by amendment of
its  Certificate  of  Incorporation or through any reorganization, transfer of  
assets, consolidation, merger, dissolution, issue or sale of securities or any  
other  voluntary  action, avoid or seek to avoid the observance or performance  
of  any of the terms to be observed or performed hereunder by the Corporation,  
but  will  at  all  times  in  good  faith  assist  in the carrying out of the  
provisions  of this Section (f) and in the taking of all such action as may be  
necessary  or  appropriate  in  order  to protect the Conversion Rights of the  
holders of the Series A Preferred Stock against impairment.                     

              (vii)  Certificates as to Adjustments.  Upon the occurrence of
each  adjustment  or  readjustment  of  any  Conversion  Rate pursuant to this  
Section(f),  the  Corporation  at  its  expense  shall  promptly  compute such  
adjustment or readjustment in accordance with the terms hereof and prepare and  
furnish  to  each holder of Series A Preferred Stock a certificate executed by  
the  Corporation's  President  or  Chief  Financial Officer 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 Series A Preferred Stock, furnish or  
cause to be furnished to such holder a like certificate setting forth (A) such  
adjustments  and  readjustments,  (B)  the  Conversion Rate for such series of  
Preferred  Stock at the time in effect, and (C) 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 A Preferred Stock.                   

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                      (viii)  Notices of Record Date.  In the event that the
Corporation  shall  propose  at any time (A) to effect any reclassification or  
recapitalization  of  its  Common  Stock outstanding involving a change in the  
Common  Stock,  or  (B)  to  merge  or  consolidate  with  or  into  any other  
corporation,  or sell, lease or convey all or substantially all of its assets,  
or  to  liquidate,  dissolve  or  wind  up; then, in connection with each such  
event, the Corporation shall send to the holders of Series A Preferred Stock:   

                                    (x)     at least twenty (20) days' prior
written  notice  of  the date on which a record shall be taken for determining  
rights  to  vote, if any, in respect of the matters referred to in (A) and (B)  
above;                                                                          

                                 (y)     in the case of the matters referred
to  in  (A)  and (B) above, at least twenty (20) days' prior written notice of  
the  date when the same shall take place (and specifying the date on which the  
holders  of  Common Stock shall be entitled to exchange their Common Stock for  
securities or other property deliverable upon the occurrence of such event).    

             (ix)  Issue Taxes.  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 of Series A Preferred Stock pursuant  
hereto;  provided, however, that the Corporation shall not be obligated to pay  
any  transfer  taxes  resulting  from  any transfer requested by any holder in  
connection with any such conversion.                                            

                    (x)  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 A Preferred Stock, 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 A Preferred  
Stock;  and  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 A Preferred Stock, 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, including, without limitation,  
engaging  in  best efforts to obtain the requisite stockholder approval of any  
necessary amendment to this Certificate.                                        

               (xi)  Fractional Shares.  No fractional share shall be issued
upon  the  conversion of any share or shares of Series A Preferred Stock.  All  
shares  of Common Stock (including fractions thereof) issuable upon conversion  
of  more  than one share of Series A Preferred Stock by a holder thereof shall  
be  aggregated for purposes of determining whether the conversion would result  
in  the  issuance  of  any  fractional  share.    If, after the aforementioned  
aggregation,  the  conversion  would result in the issuance of a fraction of a  
share  of  Common  Stock,  the  Corporation  shall,  in  lieu  of  issuing any  
fractional  share, pay the holder otherwise entitled to such fraction a sum in  
cash equal to the fair market value of such fraction on the date of conversion  
(as determined in good faith by the Board of Directors).                        

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              (xii)  Notices.  Any notice required by the provisions of this
Section  (f)  to be given to the holders of shares of Series A Preferred Stock  
shall be deemed given if deposited in the United States mail, postage prepaid,  
and  addressed  to each holder of record at such holder's address appearing in  
the records of the Corporation.                                                 

   RESOLVED FURTHER, that the Chief Executive Officer or any Vice President,
and the Secretary or the Chief Financial Officer of this corporation be, and
each of them hereby is, authorized, empowered and directed, for and on behalf 
of  this  corporation,  to  execute,  verify  and  file  a  certificate  of 
determination of preferences with respect to the Series A Preferred Stock in
accordance with Delaware law; and                                             

   RESOLVED FURTHER, that any officer of this corporation, acting alone, be,
and hereby is, authorized, empowered and directed, for and on behalf of this
corporation,  to execute any and all further documents or instruments and to
take any further actions as may be necessary, proper or advisable in order to 
effectuate the intent and purposes of the foregoing resolutions."             

          The undersigned further declare under penalty of perjury under the
laws  of  the State of Delaware that the matters set forth in this Certificate  
of  Designation  of  Preferences  and  Rights  are true and correct of our own  
knowledge.                                                                      

DATED:  September 30, 1997                                                      

____________________________________                                            
Amyn S. Dahya, Chief Executive Officer                                          

____________________________________                                            
Dennis E. Welling, Secretary                                                    

Dates Referenced Herein   and   Documents Incorporated by Reference

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