Attached files
| file | filename |
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| 10-K - CHINA CRESCENT ENTERPRISES, INC. 10-K - China Crescent Enterprises, Inc. | a6251243.htm |
| EX-32 - EXHIBIT 32 - China Crescent Enterprises, Inc. | a6251243ex32.htm |
| EX-4.4 - EXHIBIT 4.4 - China Crescent Enterprises, Inc. | a6251243ex4_4.htm |
| EX-10.7 - EXHIBIT 10.7 - China Crescent Enterprises, Inc. | a6251243ex10_7.htm |
| EX-31.1 - EXHIBIT 31.1 - China Crescent Enterprises, Inc. | a6251243ex31_1.htm |
| EX-31.2 - EXHIBIT 31.2 - China Crescent Enterprises, Inc. | a6251243ex31_2.htm |
Exhibit 4.3
CERTIFICATE OF DESIGNATION OF
SERIES C CONVERTIBLE PREFERRED STOCK
OF
CHINA CRESCENT ENTERPRISES, INC.
It is hereby certified that:
1. The name of the Company (hereinafter called the "Company") is China Crescent Enterprises, Inc., a Nevada corporation.
2. The Certificate of Incorporation of the Company authorizes the issuance of Five Million (5,000,000) shares of preferred stock, no par value per share, and expressly vests in the Board of Directors of the Company the authority provided therein to issue any or all of said shares in one (1) or more series and by resolution or resolutions to establish the designation and number and to fix the relative rights and preferences of each series to be issued.
3. The Board of Directors of the Company, pursuant to the authority expressly vested in it as aforesaid, has adopted the following resolutions creating a Series C issue of Preferred Stock:
RESOLVED, that ten-thousand (10,000) of the Five Million (5,000,000) authorized shares of Preferred Stock of the Company shall be designated Series C Convertible Preferred Stock, no par value per share, the Stated Value of the Series C Convertible Preferred Stock shall be $100 per share (the “Series C Issue Price”), and shall possess the rights and preferences set forth below:
Section 1. Designation and Amount. The shares of such series shall have no par value and shall be designated as Series C Convertible Preferred Stock (the "Series C Preferred Stock") and the number of shares constituting the Series C Convertible Preferred Stock shall be ten-thousand (10,000).
Section 2. Rank. Series C Preferred shall have priority over all other outstanding securities of the Company, except Series A, the Series C Preferred Stock shall rank: (i) senior to any other class or series of outstanding Preferred Shares or series of capital stock of the Company; except Series A Preferred Stock (ii) prior to all of the Company's Common Stock, $0.001 par value per share ("Common Stock"); (iii) prior to any class or series of capital stock of the Company hereafter created not specifically ranking by its terms senior to or on parity with any Series C Preferred Stock of whatever subdivision (collectively, with the Common Stock and the Existing Preferred Stock); called “Junior Securities” in each case as to distributions of assets upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary (all such distributions being referred to collectively as "Distributions").
Section 3. Dividends. The Series C Preferred Stock shall bear no dividend.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, the Holders of shares of Series C Preferred Stock shall be entitled to receive, immediately after any distributions to Senior Securities required by the Company's Certificate of Incorporation or any certificate of designation, and prior in preference to any distribution to Junior Securities but in parity with any distribution to Parity Securities, an amount per share equal to $1,000 per share. If upon the occurrence of such event, and after payment in full of the preferential amounts with respect to the Senior Securities, the assets and funds available to be distributed among the Holders of the Series C Preferred Stock shall be insufficient to permit the payment to such Holders of the full preferential amounts due to the Holders of the Series C Preferred Stock, then the entire remaining assets and funds of the Company legally available for distribution shall be distributed among the Holders of the Series C Preferred Stock and the Parity Securities, pro rata, based on the respective liquidation amounts to which such series of stock is entitled by the Company's Certificate of Incorporation and any certificate(s) of designation relating thereto.
(b) Upon the completion of the distribution required by subsection 4(a), if assets remain in the Company, they shall be distributed to holders of Junior Securities in accordance with the Company's Certificate of Incorporation including any duly adopted certificate(s) of designation.
Section 5. Conversion. NewMarket Technology, Inc., as Holder of this Series C Preferred Stock shall hold this certificate with conversion rights for the sole benefit of the common shareholders of NewMarket Technology, Inc. as follows:
(i) Automatic Conversion. Subject to an effective Registration Statement with the Securities and Exchange Commission registering the common conversion shares hereunder, each share of Series C Preferred Stock shall be converted in full into the number of fully paid and non-assessable shares of common stock of the Corporation under the formula provided below.
(ii) Conversion Price. The number of shares of common stock due upon conversion of Series C Preferred Stock shall be the number of shares of Series C Preferred Stock outstanding, multiplied by the Series C Issue Price, divided by the Series C Conversion Price, determined as hereafter provided, in effect at the time of the conversion. The Series C Conversion Price shall be $0.04.
(iii) Delivery of Common Stock Upon Conversion. The Transfer Agent or the Company (as applicable) shall, no later than the close of business on the third (3rd) business day (the “Deadline”) after receipt by the Company or the Transfer Agent of a facsimile copy of a Registration Effectiveness and receipt by Company or the Transfer Agent of all necessary documentation duly executed and in proper form required for conversion, including the original Preferred Stock Certificates to be converted (or after provision for security or indemnification in the case of lost or destroyed certificates, if required), issue and surrender to a common courier for either overnight or (if delivery is outside the United States) two (2) day delivery to the Holder at the address of the Holder as shown on the stock records of the Company a certificate for the number of shares of Common Stock to which the Holder shall be entitled as aforesaid.
(iv) No Fractional Shares. If any conversion of the Series C Preferred Stock would create a fractional share of Common Stock or a right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares of Common Stock issuable upon conversion, in the aggregate, shall be the next lower number of shares.
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(v) Date of Conversion. The date on which conversion occurs (the "Date of Conversion") shall be deemed to be the date, 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 the Date of Conversion.
(c) Reservation of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available or make provision to increase, reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Series C Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding Series C 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 Series C Preferred Stock, the Company will take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.
(d) Adjustment to Conversion Rate.
(i) Adjustment to Fixed Conversion Price Due to Stock Split, Stock Dividend, Etc. If, prior to the conversion of all of the Series C Preferred Stock, the number of outstanding shares of Common Stock is increased by a stock split, stock dividend, or other similar event, the Conversion Price shall be proportionately reduced, or if the number of outstanding shares of Common Stock is decreased by a combination or reclassification of shares, or other similar event, the Conversion Price shall be proportionately increased.
(ii) Adjustment Due to Merger, Consolidation, Etc. If, prior to the conversion of all Series C Preferred Stock, there shall be any merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar event, as a result of which shares of Common Stock of the Company shall be changed into the same or a different number of shares of the same or another class or classes of stock or securities of the Company or another entity or there is a sale of all or substantially all the Company’s assets, then the Holders of Series C Preferred Stock shall thereafter have the right to receive upon conversion of Series C Preferred Stock, upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Common Stock immediately theretofore issuable upon conversion, such stock, securities and/or other assets which the Holder would have been entitled to receive in such transaction had the Series C Preferred Stock been converted immediately prior to such transaction, and in any such case appropriate provisions shall be made with respect to the rights and interests of the Holders of the Series C Preferred Stock to the end that the provisions hereof (including, without limitation, provisions for the adjustment of the Conversion Price and of the number of shares issuable upon conversion of the Series C Preferred Stock) shall thereafter be applicable, as nearly as may be practicable in relation to any securities thereafter deliverable upon the exercise hereof.
(iii) No Fractional Shares. If any adjustment under this Section 5(d) would create a fractional share of Common Stock or a right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares of Common Stock issuable upon conversion shall be rounded to the next lower whole number of shares.
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Section 6. Redemption by Company. None. The company has no redemption obligation but may elect, in its sole discretion, to redeem at the issue price.
Section 7. Status of Converted or Redeemed Stock. In the event any shares of Series C Preferred Stock shall be converted or redeemed pursuant to Section 5 hereof, the shares so converted or redeemed shall be canceled, shall return to the status of authorized but unissued Preferred Stock of no designated series, and shall not be issuable by the Company as Series C Preferred Stock.
Section 8. Preference Rights. Nothing contained herein shall be construed to prevent the Board of Directors of the Company from issuing one (1) or more series of Preferred Stock with dividend and/or liquidation preferences junior to the dividend and liquidation preferences of the Series C Preferred Stock.
Signed on: November 19, 2009
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SIGNATURE PAGE
[Certificate of Designation of Series C Preferred Stock]
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By:
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/s/ Philip J. Rauch
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Philip J. Rauch
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Chief Financial Officer
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