Attached files
| file | filename |
|---|---|
| 8-K - TM Entertainment & Media, Inc. | v171261_8k.htm |
| EX-4.7 - TM Entertainment & Media, Inc. | v171261_ex4-7.htm |
| EX-4.8 - TM Entertainment & Media, Inc. | v171261_ex4-8.htm |
| EX-4.6 - TM Entertainment & Media, Inc. | v171261_ex4-6.htm |
| EX-99.1 - TM Entertainment & Media, Inc. | v171261_ex99-1.htm |
| EX-10.18 - TM Entertainment & Media, Inc. | v171261_ex10-18.htm |
CERTIFICATE
OF DESIGNATIONS OF
SERIES
A PREFERRED STOCK,
PAR
VALUE US$0.001 PER SHARE, OF
CHINA
MEDIAEXPRESS HOLDINGS, INC.
Pursuant
to Sections 151 and 103 of the
General
Corporation Law of the State of Delaware
CHINA MEDIAEXPRESS HOLDINGS, INC.,
a corporation organized and existing under the laws of the State of
Delaware (the “Company”), certifies
that pursuant to the authority contained in its Restated Certificate of
Incorporation, as amended from time to time (the “Certificate of
Incorporation”), and in accordance with the provisions of Section 151 of
the General Corporation Law of the State of Delaware, the Board of the Company
has duly approved and adopted the following resolution on January 8, 2010, and
the resolution was adopted by all necessary action on the part of the
Company:
RESOLVED, that pursuant to the
authority vested in the Board by the Certificate of Incorporation and Section
151 of the General Corporation Law of the State of Delaware, the Board does
hereby designate, create, authorize and provide for the issue of one million
(1,000,000) shares of Preferred Stock, with a par value of US$0.001, and having
the voting powers and such designations, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions that are set forth in this resolution of the Board
pursuant to authority expressly vested in it by the provisions of the
Certificate of Incorporation and hereby constituting an amendment to the
Certificate of Incorporation as follows:
1. Designation. The
designation of the series of preferred stock of the Company is “Series A
Preferred Stock,” par value US$0.001 per share (the “Series A Preferred
Stock”). Series A Preferred Stock shall be perpetual.
2. Number of
Shares. The
authorized number of shares of Series A Preferred Stock is one million
(1,000,000).
3. Defined Terms and Rules of
Construction.
(a) Definitions. Unless otherwise defined
herein, as used herein
with respect to Series A Preferred Stock:
“Board” shall mean the
board of directors of the Company.
“Business Day” shall
mean a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a
day on which banking institutions in New York, New York generally are authorized
or obligated by law, regulation or executive order to close.
“Bylaws” shall mean
the Amended and Restated Bylaws of the Company in effect on the date hereof, as
they may be amended from time to time.
“Capital Stock” shall
mean any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (in each case however
designated) stock issued by the Company.
“Commission” shall
mean the U.S. Securities and Exchange Commission, including the staff
thereof.
“Certificate of
Designations” shall mean this Certificate of Designations relating to
Series A Preferred Stock, as it may be amended from time to time.
“Common Stock” shall
mean the common stock, par value US$0.001 per share, of the
Company.
“Exchange Act” shall
mean the U.S. Securities Exchange Act of 1934, as amended and the rules and
regulations promulgated by the SEC thereunder.
“Governmental
Authority” shall mean any foreign governmental authority, the United
States of America, any state of the United States and any political subdivision
of any of the foregoing, and any agency, instrumentality, department,
commission, board, bureau, central bank, authority, court or other tribunal, in
each case whether executive, legislative, judicial, regulatory or
administrative.
“Junior Stock” shall
mean Common Stock and any other class or series of Capital Stock that ranks
junior to Series A Preferred Stock as to the distribution of assets on any
liquidation, dissolution or winding up of the Company.
“Original Issuance
Date” shall mean January [•], 2010.
“Per Share Issuance
Price” shall mean US$30.
“Person” shall mean
any individual, association, partnership, limited liability company, joint
venture, corporation, trust, unincorporated organization, Governmental Authority
or any other form of entity.
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“PRCCo” shall mean
Fujian Fenzhong Media Co., Ltd., a limited liability company operating in the
media business established in the People’s Republic of China (the “PRC”).
“Purchase Agreement”
shall mean the securities purchase agreement dated January 12, 2010 entered into
by and among the Company, Starr Investments Cayman II, Inc. (the “Investor”) and other
parties, according to which, the Company agreed to sell to the Investor
1,000,000 shares of Series A Preferred Stock and warrants entitling the Investor
to purchase 1,545,455 shares of Common stock (the “Stock
Purchase”).
“SEC” shall mean the
U.S. Securities and Exchange Commission or any other U.S. federal agency then
administering the Securities Act or Exchange Act.
“Securities Act” shall
mean the U.S. Securities Act of 1933, as amended and the rules and regulations
of the SEC thereunder.
“Series A Ownership
Percentage” with respect to any Person, as of a particular date of
determination, shall mean the percentage determined by a fraction, the numerator
of which is the sum of the number of (i) shares of Common Stock held by such
Person plus (ii) shares
of Common Stock issuable upon (x) the conversion of any shares of Series A
Preferred Stock or (y) the exercise of any warrants of the Company, in each
case, owned by such Person, and the denominator of which is the total number of
shares of Common Stock issued and outstanding, on a fully-diluted and
as-converted basis as of the date of determination.
“Subsidiary” of any
Person shall mean any corporation, partnership, joint venture, limited liability
company, trust, variable interest entity or other entity controlled by such
Person directly or indirectly through one or more intermediaries.
“VIE Agreements” shall
mean all the agreements, contracts and instruments enabling the WFOE to effect
control over and consolidate with its financial statements the
PRCCo.
“WFOE” shall mean
Fujian Zhongheng Express Information Technology Ltd., a limited liability
company established in the PRC and a wholly owned Subsidiary of the
Company.
(b) Rules
of Construction. Unless
the context otherwise requires: (i) a term has the meaning assigned to it
herein; (ii) an accounting term not otherwise defined herein has the meaning
accorded to it in accordance with generally accepted accounting principals in
effect from time to time in the United States, applied on a consistent basis;
(iii) words in the singular include the plural, and in the plural include the
singular; (iv) “or” is not exclusive; (v) “will” shall be interpreted to express
a command; (vi) “including” means including without limitation; (vii) provisions
apply to successive events and transactions; (viii) references to any Section or
clause refer to the corresponding Section or clause, respectively, of this
Certificate of Designations; (ix) any reference to a day or number of days,
unless expressly referred to as a Business Day, shall mean the respective
calendar day or number of calendar days; (x) references to sections of or rules
under the Exchange Act shall be deemed to include substitute, replacement or
successor sections or rules, and any term defined by reference to a section of
or rule under the Exchange Act shall include Commission and judicial
interpretations of such section or rule; (xi) headings are for convenience
only.
3
4. Liquidation
Rights.
(a) Voluntary
or Involuntary Liquidation. In the event of any
liquidation, dissolution or winding up of the affairs of the Company (a “Liquidation Event”),
whether voluntary or involuntary, holders of Series A Preferred Stock shall be
entitled to receive for each share of Series A Preferred Stock, out of the
assets of the Company or proceeds thereof (whether capital or surplus) available
for distribution to shareholders of the Company, and after satisfaction of all
liabilities and obligations to creditors of the Company, before any distribution
of such assets or proceeds is made to or set aside for the holders of Junior
Stock, an amount (the “Liquidation
Preference”) equal to the greater of (1) the sum of US$30 per share and
(2) the per share amount of all cash, securities and other property (such
securities or other property having a value equal to its fair market value as
reasonably determined by the Board) to be distributed in respect of Common Stock
such holder would have been entitled to receive had it converted such Series A
Preferred Stock immediately prior to the date fixed for such liquidation,
dissolution or winding up of the Company.
(b) Partial
Payment. If in
connection with any distribution described in Section 4(a) above the assets of
the Company or proceeds thereof are not sufficient to pay the Liquidation
Preference in full to all holders of Series A Preferred Stock, the amounts paid
to the holders of Series A Preferred Stock shall be paid pro rata in accordance with
the respective aggregate Liquidation Preferences of the holders of Series A
Preferred Stock.
5. Conversion.
(a) Mechanics.
Each
share of Series A Preferred Stock may be converted on any date, from time to
time, at the option of the holder thereof, into the number of shares of Common
Stock (the “Per Share
Amount”) equal to the quotient of (i) the Per Share Issuance Price divided by (ii) the
Conversion Price (as defined below) in effect at such time (a “Conversion”). The
“Conversion
Price” shall initially be US$10.00, and shall be subject to adjustment as
provided in Sections 5(c) – 5(d) below.
The right
of conversion attaching to any shares of Series A Preferred Stock may be
exercised by the holders thereof by delivering the shares to be converted to the
office of the Company, accompanied by a duly signed and completed notice of
conversion in the form attached as Exhibit A. The conversion date shall be the
date on which the shares of Series A Preferred Stock and the duly signed and
completed notice of conversion are received by the Company. The Person entitled
to receive the Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Common Stock as of such
conversion date, and such Person or Persons shall cease to be a record holder of
Series A Preferred Stock on that date. As promptly as practicable on or after
the conversion date (and in any event no later than three (3) Business Days
thereafter), the Company shall issue the number of whole shares of Common Stock
issuable upon conversion. Such delivery shall be made, at the option of the
applicable holder, in certificated form (with appropriate legends, if necessary)
or by book-entry, if permissible by law. Any such certificate or certificates
shall be delivered by the Company to the appropriate holder on a book-entry
basis or by mailing certificates evidencing the shares to the holders at their
respective addresses as set forth in the conversion notice.
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(b) Mandatory
Conversion. Each
share of Series A Preferred Stock shall be mandatorily converted into an
appropriate number of shares of Common Stock in accordance with Section 5(a)
above upon the earliest to occur of (i) the date that is four (4) years after
the Original Issuance Date, (ii) the market capitalization of the Company equals
or exceeds US$1.2 billion, or (iii) the closing price of Common Stock has been
at least US$25 per share for any twenty (20) consecutive trading days within a
thirty (30) trading day period. .
(c) Adjustment
for Stock Dividends, Stock Splits and Combinations. If the
Company shall at any time or from time to time after the Original Issuance Date
effect a subdivision of the outstanding Common Stock or a stock dividend,
distribution, recapitalization or similar event, the Conversion Price then in
effect immediately before that subdivision shall be proportionately decreased.
If the Company shall at any time or from time to time after the Original
Issuance Date combine the outstanding shares of Common Stock, the Conversion
Price then in effect immediately before the combination shall be proportionately
increased. Any adjustment under this Section 5(c) shall become effective at the
close of business on the date the subdivision or combination becomes
effective.
(d) Adjustment
for Merger or Reorganization, etc. In the
case of any consolidation or merger of the Company (a “Merger”) with or into
another corporation (a “Third Party
Acquiror”) (except one in which the holders of Capital Stock of the
Company immediately prior to such Merger continue to hold a majority of the
voting power of the capital stock of the surviving or acquiring corporation (on
a fully diluted basis) immediately after such Merger), each share of Series A
Preferred Stock that remains outstanding immediately prior to the effective date
of such Merger (the “Effective Date”)
shall thereafter be convertible (or shall be converted into or exchanged for a
security which shall be convertible) into the kind and amount of shares of stock
or other securities or property to which a holder of the number of shares of
Common Stock deliverable upon conversion of one share of Series A Preferred
Stock would have been entitled upon such Merger (“Conversion Option”);
provided, however, that should any
holder of Series A Preferred Stock notify the Company not later than twenty (20)
Business Days after the first public announcement by the Company that it
has entered into a definitive agreement (a “Definitive
Agreement”) with respect to such Merger that such holder does not wish
for one or more of its shares to be treated in the manner of the Conversion
Option, such holder shall, at the sole option of the Third Party Acquiror, upon
the effectiveness of the Merger (i) receive, without interest cash in an amount
equal to the number of shares of Common Stock into which the number of shares of
Series A Preferred Stock designated in such holder’s notice would have been
converted effective immediately prior to the effective date of the conversion or
merger multiplied by the fair market value of the consideration per share of
Common Stock issuable to each other holder of shares of Common Stock in
connection with such consolidation or merger, which fair market value, (1) in
the case of publicly-traded equity securities to be issued in the Merger the
amount of which is to be determined based on a fixed exchange ratio, shall be
equal to the average closing price of such securities during the twenty (20)
consecutive trading days before and excluding the Effective Date, as reported by
the primary exchange or quotation system on which such securities are traded,
(2) in the case of publicly-traded equity securities to be issued in the Merger
the amount of which is to be determined with reference to an average trading
price per share for such equity securities determined over a specified time
period before the Effective Date, shall be equal to such average trading price,
(3) in the case of any other securities or property, shall be valued using
customary commercial valuation methods without giving any effect to discounts
for illiquidity, restrictions on transfer or minority ownership status, and (4)
in the case of publicly-traded equity securities or other securities or property
to be issued in the Merger together with cash, shall be the sum of the actual
cash amount plus the fair market value of such equity securities determined as
provided in the preceding clauses (1), (2) or (3), as applicable; or (ii) be
convertible into the kind and amount of shares of stock or other securities of
the Third Party Acquiror with rights, privileges and preferences commensurate
with the rights, preferences and privileges of Series A Preferred Stock, with
the Conversion Price and other terms of Series A Preferred Stock (excluding the
Liquidation Preference or Per Share Issuance Price) proportionally adjusted to
give effect to the relative stock prices of the Company and the Third Party
Acquiror as of immediately before the Effective Date, and upon the effectiveness
of the Merger such shares of Series A Preferred Stock shall be cancelled. The
Third Party Acquiror shall notify each holder of Series A Preferred Stock of its
election to offer the consideration described in clause (i) or (ii) of this
Section 5(d) not later than five (5) Business Days after the first public
announcement by the Company that it has entered into a definitive agreement with
respect to such Merger. If the Third Party elects to provide the
consideration in clause (ii), it shall include in its notice the form of the new
security to be issued.
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(e) Certificate
as to Adjustments. Upon the
occurrence of each adjustment or readjustment of the Conversion Price pursuant
to Section 5(c) – 5(d), the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms of this Section 5 and
furnish to each holder of Series A Preferred Stock a certificate setting forth
the adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company 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 similar certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price then in effect, and
(iii) the number of shares of Common Stock which would then be received upon
conversion of Series A Preferred Stock.
(f) Successive
Adjustments. The
provision for adjustments in Sections 5(c) – 5(d) shall apply in each successive
instance in which an adjustment is required thereby.
(g) Fractional
of Shares. No
fractional shares of Common Stock shall be issued by the Company upon conversion
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 represented by a single certificate 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 any fractional share, the Company
shall, in lieu of issuing any fractional share, pay cash in an amount equal to
the product of such fraction multiplied by the Common Stock’s fair market value
(as determined by the Board) on the date of Conversion and shall pay such amount
concurrently with the delivery of certificates representing the shares of Common
Stock issued upon such Conversion.
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(h) Common
Stock Reserved for Issuance. The
Company shall at all times reserve and keep available out of its authorized and
unissued Common Stock, solely for issuance upon the conversion of Series A
Preferred Stock, such number of shares of Common Stock as shall from time to
time be issuable upon the conversion of all the shares of Series A Preferred
Stock then outstanding. Any shares of Common Stock issued upon conversion of
Series A Preferred Stock shall be (i) duly authorized, validly issued and fully
paid and nonassessable, (ii) shall rank pari passu with the other shares of
Common Stock outstanding from time to time and (iii) shall be approved for
listing on the principal national securities exchange on which Common Stock is
listed or admitted to trading.
(i) No
Impairment. The
Company shall not avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but shall at all
times in good faith assist in carrying out all such actions as may be reasonably
necessary or appropriate in order to protect the conversion rights of the
holders of Series A Preferred Stock against impairment.
(j) Taxes. The
Company shall pay any and all transfer taxes that may be payable in respect of
the issue or delivery of shares of Common Stock on conversion of Series A
Preferred Stock. The Company 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 Series A
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
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
6. Voting
Rights.
(a) General.
The
holders of shares of Series A Preferred Stock shall be entitled to vote with the
holders of shares of Common Stock on all matters submitted to a vote of
shareholders of the Company. Each holder of shares of Series A Preferred
Stock shall be entitled to the number of votes, rounded down to the nearest
whole number, equal to the number of shares of Common Stock into which all
shares of Series A Preferred Stock held of record by such holder could then be
converted pursuant to Section 5 at the record date for the determination of the
shareholders entitled to vote on such matter (or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders is first executed), multiplied by a fraction,
the numerator of which shall equal US$10 and the denominator of which shall
equal the closing price of Common Stock on the NYSE Amex LLC on the date of the
Purchase Agreement.. The holders of shares of Series A Preferred Stock shall be
entitled to notice of any meeting of shareholders of the Company in accordance
with the Bylaws.
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(b) Class
Voting Rights as to Particular Matters. For so
long as the Investor’s Series A Ownership Percentage is greater than or equal to
3% (the “Preferred
Threshold”), the affirmative vote or consent of the holder(s) of at least
a majority of shares of Series A Preferred Stock then outstanding shall be
necessary for effecting any of the actions described in clauses (1) through (3)
below:
(1) any
amendment, alteration or repeal of any provision of the Certificate of
Incorporation or the Certificate of Designations or the Bylaws of the Company or
those of its Subsidiaries so as to adversely affect the relative rights,
preferences, privileges or voting powers of Series A Preferred Stock or Section
6(c) below relating to the Preferred Director (as defined below);
or
(2) any
increase or decrease the total number of authorized shares of Series A Preferred
Stock; or
(3) any
material amendments to the VIE Agreements.
(c) Preferred
Director. The
holders of Series A Preferred Stock, voting separately as a class, shall be
entitled at each annual meeting of the stockholders of the Company or at any
special meeting called for the purpose of electing directors to elect one (1)
director to the Board (the “Preferred Director”)
for so long as the Investor maintains the Preferred Threshold. The initial
Preferred Director shall be the Person designated by the Investor on the
Original Issuance Date, who shall take office effective as of the Original
Issuance Date, and shall serve until his or her successor is duly
appointed. A Preferred Director may only be removed and replaced by the
holders of at least of a majority of shares of Series A Preferred Stock then
outstanding, at a vote of the then outstanding shares of Series A Preferred
Stock, voting as a single class, at a meeting called for such purpose (or by
written consent in lieu of such a meeting). In the event any Preferred
Director shall resign prior to the expiration of the term for which he is
elected to serve on the Board, then the holders of Series A Preferred Stock
shall have the right to nominate for election by the Board a replacement, provided that the holders of
Series A Preferred Stock are entitled to elect such Preferred Director pursuant
to this Certificate of Designations.
Notwithstanding
anything to the contrary, if the holders of Series A Preferred Stock shall cease
to have the right to appoint the Preferred Director pursuant to the terms
hereof: (i) the Preferred Director shall promptly submit his or her resignation
and the other directors of the Board shall decide, by the affirmative vote of a
majority of such directors, whether to accept such resignation and, if such
resignation is accepted, whether to decrease the size of the Board to eliminate
such vacancy in accordance with the Company’s Bylaws; and (ii) Section 6(c)
shall have no further force and effect.
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7. Notices. All
notices or communications in respect of Series A Preferred Stock shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed facsimile, on the next
Business Day, (iii) five days after having been sent by registered or certified
U.S. mail, return receipt requested, postage prepaid, or (iv) one Business Day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with verification of receipt. All notices to holders of
Series A Preferred Stock shall be addressed to the holders of record at the
address of such holders appearing on the books of the Company and if any such
holder of record has provided the Company with the address of its counsel in
writing, a copy of such notice shall be delivered to such counsel at such
address.
8. Replacement
Certificates. The
Company shall replace any mutilated certificate at the holder’s expense upon
surrender of that certificate to the Company. The Company shall replace any
certificate that become destroyed, stolen or lost at the holder’s expense upon
delivery to the Company of reasonably satisfactory evidence that the certificate
has been destroyed, stolen or lost.
9. Severability of
Provisions. If
any right, preference or limitation of Series A Preferred Stock set forth herein
is invalid, unlawful or incapable of being enforced by reason of any rule of law
or public policy, all other rights, preferences and limitations set forth in
this resolution, which can be given effect without the invalid, unlawful or
unenforceable right, preference or limitation shall, nevertheless, remain in
full force and effect, and no right, preference or limitation herein set forth
shall be deemed dependent upon any other such right, preference or limitation
unless so expressed.
9
IN
WITNESS WHEREOF, the Company has caused this Certificate of Designations to be
duly executed and acknowledged by its undersigned duly authorized officer this
____ day of _________, 2010.
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CHINA
MEDIAEXPRESS HOLDINGS,
INC.
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By:
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Name:
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Title:
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[Signature Page
to Certificate of Designations]
Exhibit
A
FORM OF CONVERSION
NOTICE
Date:
__________
To: China MediaExpress Holdings,
Inc.
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1.
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Reference
is hereby made to the Certificate of Designations of China MediaExpress
Holding, Inc. dated __________ (the “Certificate of
Designations”). Capitalized terms used herein, unless defined
otherwise, shall have the meanings ascribed to them in the Certificate of
Designations.
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2.
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The
undersigned hereby elects to convert __________shares of Series A
Preferred Stock into __________shares of Common Stock pursuant to the
Certificate of Designations.
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3.
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Please
issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below:
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(Name)
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4.
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Please
issue a new certificate(s) for the unconverted portion of the attached
share certificate(s) in the name of the undersigned or in such other name
as is specified below:
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Name:
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