Attached files
| file | filename |
|---|---|
| 8-K - Eco-Trade Corp. | v168215_8k.htm |
| EX-10.1 - Eco-Trade Corp. | v168215_ex10-1.htm |
CERTIFICATE
OF DESIGNATION OF
PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES
C PREFERRED STOCK OF
YASHENG
ECO-TRADE CORPORATION
Pursuant
to Section 151 of the Delaware
General
Corporation Law
I, Gregory Rubin, Chairman of Yasheng
Eco-Trade Corporation, a corporation organized and existing under the Delaware
General Corporation Law (the “Company”), in accordance with the provisions of
Section 151 of such law, DOES HEREBY CERTIFY that at a meeting of the Board of
Directors that the following resolutions were adopted:
RESOLVED, that pursuant to the
authority vested in the Board of Directors of the Company in accordance with the
provisions of Article FOURTH of the Company’s Certificate of Incorporation,
as amended, a series of Preferred Stock of the Company be, and hereby is,
created, and the powers, designations, preferences and relative, participating,
optional or other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof, be, and hereby are, as
follows:
Section
1. Designation, Amount
and Par Value. The series of preferred stock shall be designated as its
SERIES C Convertible Preferred Stock (the “Preferred Stock”) and
the number of shares so designated shall be 210,087 (which shall not be subject
to increase without the consent of a majority of the holders of the Preferred
Stock (each, a “Holder” and
collectively, the “Holders”)). Capitalized
terms not otherwise defined herein shall have the meaning given such terms in
Section 6 hereof.
Section
2. Dividends. Holders
shall be not be entitled to receive dividends.
Section
3. Voting
Rights. Except as otherwise provided herein and as otherwise prohibited
by law, the Preferred Stock shall have voting rights on a converted basis
divided by 10 an as converted basis.
Section
4. Liquidation.
Upon any liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary (a “Liquidation”), the
Holders shall be entitled to receive out of the assets of the Corporation,
whether such assets are capital or surplus, for each share of Preferred Stock an
amount equal to the Stated Value per share plus interest of 15% per year and any
other fees or liquidated damages owing thereon before any distribution or
payment shall be made to the holders of any Junior Securities, and if the assets
of the Corporation shall be insufficient to pay in full such amounts, then the
entire assets to be distributed to the Holders shall be distributed among the
Holders ratably in accordance with the respective amounts that would be payable
on such shares if all amounts payable thereon were paid in full.
Section
5. Conversion. Each
share of Preferred Stock shall be convertible at the election of the holder into
one-sixth (1/6) of a share of Common Stock; provided, however, in the event that
the Preferred Stock has been outstanding for a period of one year, then it shall
be automatically converted into shares of Common Stock in accordance with the
aforementioned conversion formula. For example, if the holder is
converting 60,000 shares of Preferred Stock into shares of Common Stock, then
the holder shall receive 10,000 shares of Common Stock, which is determined by
dividing 60,000 by six.
Section
6. Definitions.
For the purposes hereof, the following terms shall have the following
meanings:
“Closing” means
closing of the purchase and sale of the Preferred Stock.
“Closing Date” means
the Trading Day when shares of the Preferred Stock are delivered by the
applicable parties thereto, and all conditions precedent to (i) the Holders’
obligations to pay the Subscription Amount and (ii) the Corporation’s
obligations to deliver the shares of Preferred Stock and Warrants have been
satisfied or waived.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means
the Corporation’s common stock, no par value per share, and stock of any other
class into which such shares may hereafter have been reclassified or
changed.
“Common Stock
Outstanding” shall have the meaning set forth in Section
5(c)(vi).
“Conversion Date”
shall have the meaning set forth in Section 5.
“Conversion Price”
shall have the meaning set forth in Section 5.
“Conversion Shares”
means, collectively, the shares of Common Stock into which the shares of
Preferred Stock are convertible in accordance with the terms
hereof.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Holder” shall have
the meaning given such term in Section 1 hereof.
“Liquidation” shall
have the meaning given such term in Section 4.
“Original Issue Date”
shall mean the date of the first issuance of any shares of the Preferred Stock
regardless of the number of transfers of any particular shares of Preferred
Stock and regardless of the number of certificates which may be issued to
evidence such Preferred Stock.
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“Person” means a
corporation, an association, a partnership, an organization, a business, an
individual, a government or political subdivision thereof or a governmental
agency.
“Principal Market”
initially means the Over-the-Counter Bulletin Board and shall also include the
American Stock Exchange, NASDAQ Small-Cap Market, the New York Stock Exchange,
or the NASDAQ National Market, whichever is at the time the principal trading
exchange or market for the Common Stock, based upon share volume.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Share Delivery Date”
shall have the meaning given such term in Section 5(b).
“Stated Value” shall
have the meaning given such term in Section 1.
“Trading Day” shall
mean any day during which the Principal Market shall be open for
business.
Section
7. Miscellaneous.
(a) Upon
a conversion hereunder the Corporation shall not be required to issue stock
certificates representing fractions of shares of Common Stock.
(b). Any
and all notices or other communications or deliveries to be provided by the
Holders of the Preferred Stock hereunder, including, without limitation, any
Notice of Conversion, shall be in writing and delivered personally, by facsimile
or sent by a nationally recognized overnight courier service, addressed to the
attention of the President of the Corporation addressed to such other address or
facsimile number as shall be specified in writing by the Corporation for such
purpose. 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 or 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.
(c) 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 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.
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(d) 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 California,
without regard to the principles of conflicts of law thereof.
(e) 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) 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) 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) 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.
(i) RESOLVED,
FURTHER, that the Chairman, the president or any
vice-president, and the secretary or any assistant secretary,
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 Delaware
law.
IN
WITNESS WHEREOF, the undersigned have executed this Certificate this
27 day of November 2009.
/s/
Gregory Rubin
Name:
Gregory Rubin
Title: Chairman
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