Attached files
| file | filename |
|---|---|
| 8-K - Creek Road Miners, Inc. | v205257_8k.htm |
| EX-3.4 - Creek Road Miners, Inc. | v205257_ex3-4.htm |
| EX-4.2 - Creek Road Miners, Inc. | v205257_ex4-2.htm |
| EX-3.3 - Creek Road Miners, Inc. | v205257_ex3-3.htm |
| EX-10.1 - Creek Road Miners, Inc. | v205257_ex10-1.htm |
| EX-17.1 - Creek Road Miners, Inc. | v205257_ex17-1.htm |
| EX-21.1 - Creek Road Miners, Inc. | v205257_ex21-1.htm |
equal to
150% of the cash dividend otherwise payable or (ii) a combination of cash and
additional shares of Series A Preferred Stock, provided there is not an
existing current Event of Default on the annual date on which a dividend payment
is payable, in which event the Holder entitled to receive such dividend may
elect to receive such dividends in cash or additional shares of Series A
Preferred Stock. The issuance of such shares of Series A Preferred
Stock shall constitute full payment of such dividends or such portion of such
dividends payable in additional shares of Series A Preferred Stock, as the case
may be.
(b) The
dividends on the Series A Preferred Stock at the rates provided above shall be
cumulative whether or not declared so that, if at any time full cumulative
dividends at the rate aforesaid on all shares of the Series A Preferred Stock
then outstanding from the date from and after which dividends thereon are
cumulative to the end of the annual dividend period next preceding such time
shall not have been paid or declared and set apart for payment, or if the full
dividend on all such outstanding Series A Preferred Stock for the then current
dividend period shall not have been paid or declared and set apart for payment,
the amount of the deficiency shall be paid or declared and set apart for payment
before any sum shall be set apart for or applied by the Corporation or a
subsidiary of the Corporation to the purchase, redemption or other acquisition
of the Series A Preferred Stock or any shares of any other class of stock
ranking on a parity with the Series A Preferred Stock and before any dividend or
other distribution shall be paid or declared and set apart for payment on any
Junior Stock and before any sum shall be set aside for or applied to the
purchase, redemption or other acquisition of any Junior Stock.
C. Liquidation and Redemption
Rights. Upon the occurrence of a Liquidation Event (as defined
below), the Holders of the Series A Preferred Stock shall be entitled to
receive, and before any payment or distribution shall be made on any shares of
any Common Stock or other class of stock presently authorized or to be
authorized (the Common Stock and such other stock being hereinafter
collectively, the “Junior
Stock”), out of the assets of the Corporation available for distribution
to stockholders, an amount equal to two (2) times the Series A Stated Value and
all accrued and unpaid dividends to and including the date of payment
thereof. Upon the payment in full of all amounts due to the Holders
of the Series A Preferred Stock (on an as converted basis), the Common Stock and
any other class of Junior Stock shall collectively receive all remaining assets
of the Corporation legally available for distribution. If the assets
of the Corporation available for distribution to the Holders of the Series A
Preferred Stock shall be insufficient to permit payment in full of the amounts
payable as aforesaid to the Holders of Series A Preferred Stock upon a
Liquidation Event, then all such assets of the Corporation shall be distributed
to the exclusion of the Holders of Junior Stock ratably among the Holders of the
Series A Preferred Stock. “Liquidation Event” shall mean
(i) the liquidation, dissolution or winding-up, whether voluntary or
involuntary, of the Corporation, (ii) the purchase or redemption by the
Corporation of shares of any class of stock or the merger or consolidation of
the Corporation with or into any other corporation or corporations, unless (a)
the Holders of the Series A Preferred Stock receive securities of the surviving
corporation having substantially similar rights as the Series A Preferred Stock
and the stockholders of the Corporation immediately prior to such transaction
are holders of at least a majority of the voting securities of the successor
corporation immediately thereafter (the “Permitted Merger”), unless the
Holders of the shares of Series A Preferred Stock elect otherwise or (b) the
sale, license or lease of all or substantially all, or any material part of, the
Corporation’s assets, unless the Holders elect otherwise.
D. Conversion into Common
Stock. Holders of shares of Series A Preferred Stock shall
have the following conversion rights and obligations:
(a) Subject
to the further provisions of this paragraph D(a), each Holder of Series A
Preferred Stock shall have the right at any time commencing after the issuance
to such Holder of Series A Preferred Stock, to convert such shares, accrued but
unpaid declared dividends on the Series A Preferred Stock and any other sum owed
by the Corporation arising from the Series A Preferred Stock or pursuant to the
Subscription Agreement entered into by the Corporation and the Holder or
Holder’s predecessor in connection with the issuance of Series A Preferred Stock
(each a “Subscription
Agreement”) (collectively “Obligation Amount”) into fully
paid and non-assessable shares of Common Stock of the Corporation determined in
accordance with the applicable conversion price provided in paragraph D(b) below
(the “Conversion
Price”). All declared or accrued but unpaid dividends may be
converted at the election of the Holder together with or independent of the
conversion of the Series A Stated Value of the Series A Preferred
Stock.
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(b) The
number of shares of Common Stock issuable upon conversion of the Obligation
Amount shall equal (i) the sum of (A) the Series A Stated Value being converted
and/or (B) at the Holder’s election, accrued and unpaid dividends or any other
component of the Obligation Amount, divided by (ii) the Conversion
Price. The Conversion Price of the Series A Preferred Stock shall be
$0.40, subject to adjustment only as described herein.
(c) Holder
will give notice of its decision to exercise its right to convert the Series A
Preferred Stock, or part thereof and/or accrued and unpaid dividends, by sending
by facsimile an executed and completed Notice of Conversion (a form of which is
annexed as Exhibit
A to this Certificate of Designation) to the Corporation via confirmed
facsimile transmission. The Holder will not be required to surrender
the Series A Preferred Stock certificate until the Series A Preferred Stock has
been fully converted. Each date on which a Notice of Conversion is
sent by facsimile to the Corporation in accordance with the provisions hereof
shall be deemed a Conversion Date. The Corporation will itself, or
cause the Corporation’s transfer agent to, transmit the Corporation’s Common
Stock certificates representing the Common Stock issuable upon conversion of the
Series A Preferred Stock to the Holder via express courier for receipt by such
Holder within three (3) business days after receipt by the Corporation of the
Notice of Conversion (the “Delivery Date”). In
the event the Common Stock is electronically transferable, then delivery of the
Common Stock must be made by electronic transfer, provided request for such
electronic transfer has been made by the Holder. A Series A Preferred
Stock certificate representing the balance of the Series A Preferred Stock not
so converted will be provided by the Corporation to the Holder if requested by
Holder, provided the
Holder has delivered the original Series A Preferred Stock certificate to the
Corporation. To the extent that a Holder elects not to surrender the
certificate for such Series A Preferred Stock for reissuance upon partial
payment or conversion, the Holder hereby indemnifies the Corporation against any
and all loss or damage attributable to a third-party claim in an amount in
excess of the actual amount of the Series A Stated Value then owned by the
Holder.
In the
case of the exercise of the conversion rights set forth in paragraph D(a)
hereof, the conversion privilege shall be deemed to have been exercised and the
shares of Common Stock issuable upon such conversion shall be deemed to have
been issued upon the date of receipt by the Corporation of the Notice of
Conversion. The person or entity entitled to receive Common Stock
issuable upon such conversion shall, on the date and thereafter, be treated for
all purposes as the recordholder of such Common Stock and shall on the same date
cease to be treated for any purpose as the record Holder of such shares of
Series A Preferred Stock so converted.
Upon the
conversion of any shares of Series A Preferred Stock, no adjustment or payment
shall be made with respect to such converted shares on account of any dividend
on the Common Stock, except that the Holder of such converted shares shall be
entitled to be paid any dividends declared on shares of Common Stock after
conversion thereof.
The
Corporation shall not be required, in connection with any conversion of the
Series A Preferred Stock and payment of dividends on Series A Preferred Stock,
to issue a fraction of a share of its Series A Preferred Stock or Common Stock
and shall instead deliver a stock certificate representing the next higher whole
number.
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The
Corporation and the Holder may not convert that amount of the Obligation Amount
on a Conversion Date in amounts that would result in the Holder having a
beneficial ownership of Common Stock which would be in excess of the sum of (i)
the number of shares of Common Stock beneficially owned by the Holder and its
Affiliates on such Conversion Date, and (ii) the number of shares of Common
Stock issuable upon the conversion of the Obligation Amount with respect to
which the determination of this proviso is being made on such Conversion Date,
which would result in the aggregate beneficial ownership by the Holder and its
Affiliates of more than 4.99% of the outstanding shares of Common Stock of the
Corporation. For the purposes of the proviso to the immediately
preceding sentence, beneficial ownership shall be determined in accordance with
Section 13(d) of the 1934 Act and Regulation 13d-3
thereunder. Subject to the foregoing, the Holder shall not be limited
to successive exercises which would result in the aggregate issuance of more
than 4.99%. The Holder may allocate which of the equity of the
Corporation deemed beneficially owned by the Holder shall be included in the
4.99% amount described above and which shall be allocated to the excess above
4.99%. The Holder
may waive the conversion limitation described in this Section in whole or in
part, upon and effective after sixty one (61) days’ prior written notice to the
Company.
(d) The
Conversion Price determined pursuant to Paragraph D(b) shall be subject to
adjustment from time to time as follows:
(i) In
case the Corporation shall at any time (A) declare any dividend or distribution
on its Common Stock or other securities of the Corporation other than the Series
A Preferred Stock, (B) split or subdivide the outstanding Common Stock, (C)
combine the outstanding Common Stock into a smaller number of shares, or (D)
issue by reclassification of its Common Stock any shares or other securities of
the Corporation, then in each such event the Conversion Price shall be adjusted
proportionately so that the Holders of Series A Preferred Stock shall be
entitled to receive the kind and number of shares or other securities of the
Corporation which such Holders would have owned or have been entitled to receive
after the happening of any of the events described above had such shares of
Series A Preferred Stock been converted immediately prior to the happening of
such event (or any record date with respect thereto). Such adjustment
shall be made whenever any of the events listed above shall occur. An
adjustment made to the Conversion Price pursuant to this paragraph D(d)(i) shall
become effective immediately after the effective date of the event.
(ii) For
so long as Series A Preferred Stock is outstanding, other than in the case of an
“Excepted Issuance” (as
defined in Section 12(a) of the Subscription Agreement), if the Corporation
issues shares of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock, for a consideration at a price per share, or
having a conversion, exchange or exercise price per share less than the
Conversion Price of the Series A Preferred Stock immediately in effect prior to
such sale or issuance, then immediately prior to such sale or issuance the
Conversion Price of the Series A Preferred Stock shall be reduced to such other
lower price. For purposes of this adjustment, the
issuance of any security carrying the right to convert such security directly or
indirectly into shares of Common Stock or of any warrant, right or option to
purchase Common Stock shall result in an adjustment to the Conversion Price upon
the issuance of the above-described security and again upon the issuance of
shares of Common Stock upon exercise of such conversion or purchase rights if
such issuance is at a price lower than the then applicable Conversion
Price. Common Stock issued or issuable by the Company for no
consideration or for consideration that cannot be determined at the time of
issue will be deemed issuable or to have been issued for $.0001 per share of
Common Stock. The reduction of the Conversion Price described in this
paragraph is in addition to other rights of the Holder described in this
Certificate of Designation and the Subscription Agreement.
(e) (1) In
case of any merger of the Corporation with or into any other corporation (other
than a merger in which the Corporation is the surviving or continuing
corporation and which does not result in any reclassification, conversion, or
change of the outstanding shares of Common Stock), then unless the right to
convert shares of Series A Preferred Stock shall have terminated as part of such
merger, lawful provision shall be made so that Holders of Series A Preferred
Stock shall thereafter have the right to convert each share of Series A
Preferred Stock into the kind and amount of shares of stock and/or other
securities or property receivable upon such merger by a Holder of the number of
shares of Common Stock into which such shares of Series A Preferred Stock might
have been converted immediately prior to such consolidation or
merger. Such provision shall also provide for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
sub-paragraph (d) of this paragraph D. The foregoing provisions of
this paragraph D(e) shall similarly apply to successive
mergers.
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(i) In
case of any sale or conveyance to another person or entity of the property of
the Corporation as an entirety, or substantially as an entirety, in connection
with which shares or other securities or cash or other property shall be
issuable, distributable, payable, or deliverable for outstanding shares of
Common Stock, then, unless the right to convert such shares shall have
terminated, lawful provision shall be made so that the Holders of Series A
Preferred Stock shall thereafter have the right to convert each share of the
Series A Preferred Stock into the kind and amount of shares of stock or other
securities or property that shall be issuable, distributable, payable, or
deliverable upon such sale or conveyance with respect to each share of Common
Stock immediately prior to such conveyance.
(f) Whenever
the number of shares to be issued upon conversion of the Series A Preferred
Stock is required to be adjusted as provided in this paragraph D(f), the
Corporation shall forthwith compute the adjusted number of shares to be so
issued and prepare a certificate setting forth such adjusted conversion amount
and the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Transfer Agent for the Series A Preferred Stock and
the Common Stock, and the Corporation shall give notice in the manner described
in the Subscription Agreement to each Holder of record of Series A Preferred
Stock of such adjusted conversion price not later than the first business day
after the event, giving rise to the adjustment.
(g) In
case at any time the Corporation shall propose:
(i) to
pay any dividend or distribution payable in shares upon its Common Stock or make
any distribution (other than cash dividends) to the Holders of its Common Stock;
or
(ii) to
offer for subscription to the Holders of its Common Stock any additional shares
of any class or any other rights; or
(iii) any
capital reorganization or reclassification of its shares or the merger of the
Corporation with another corporation (other than a merger in which the
Corporation is the surviving or continuing corporation and which does not result
in any reclassification, conversion, or change of the outstanding shares of
Common Stock); or
(iv) the
voluntary dissolution, liquidation or winding-up of the
Corporation;
then, and
in any one or more of said cases, the Corporation shall cause at least fifteen
(15) days prior notice of the date on which (A) the books of the Corporation
shall close or a record be taken for such stock dividend, distribution, or
subscription rights, or (B) such capital reorganization, reclassification,
merger, dissolution, liquidation or winding-up shall take place, as the case may
be, to be mailed to the Holders of record of the Series A Preferred
Stock.
(h) For
so long as any shares of Series A Preferred Stock or any Obligation Amount shall
remain outstanding and the Holders thereof shall have the right to convert the
same in accordance with provisions of this paragraph D(h), the Corporation shall
at all times reserve from the authorized and unissued shares of its Common Stock
150% of the number of shares of Common Stock that would be necessary to allow
the conversion of the entire Obligation Amount.
(i) The
term “Common Stock” as
used in this Certificate of Designation shall mean the Common Stock of the
Corporation as such stock is constituted at the date of issuance thereof or as
it may from time to time be changed, or shares of stock of any class or other
securities and/or property into which the shares of the Series A Preferred Stock
shall at any time become convertible pursuant to the provisions of this
paragraph D(i).
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(j) The
Corporation shall pay the amount of any and all issue taxes (but not income
taxes) which may be imposed in respect of any issue or delivery of stock upon
the conversion of any shares of Series A Preferred Stock, but all transfer taxes
and income taxes that may be payable in respect of any change of ownership of
Series A Preferred Stock or any rights represented thereby or of stock
receivable upon conversion thereof shall be paid by the person or persons
surrendering such stock for conversion.
(k) In
the event a Holder shall elect to convert any shares of Series A Preferred Stock
as provided herein, the Corporation may not refuse conversion based on any claim
that such Holder or any one associated or affiliated with such Holder has been
engaged in any violation of law, or for any other reason unless, an injunction
from a court, on notice, restraining and or enjoining conversion of all or part
of said shares of Series A Preferred Stock shall have been sought and obtained
by the Corporation or at the Corporation’s request or with the Corporation’s
assistance and the Corporation posts a surety bond for the benefit of such
Holder equal to 120% of the Obligation Amount sought to be converted, which is
subject to the injunction, which bond shall remain in effect until the
completion of arbitration/litigation of the dispute and the proceeds of which
shall be payable to such Holder in the event Holder obtains
judgment.
(l)
In
addition to any other rights available to the Holder, if the Corporation fails
to deliver to the Holder such certificate or certificates pursuant to Section
D(c) by the Delivery Date and if after the Delivery Date the Holder or a broker
on behalf of the Holder purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by such Holder of
the Common Stock which the Holder anticipated receiving upon such conversion (a
“Buy-In”), then the
Corporation shall pay in cash to the Holder (in addition to any remedies
available to or elected by the Holder) within five (5) business days after
written notice from the Holder, the amount by which (A) the Holder’s total
purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (B) the aggregate Series A Stated Value of the
shares of Series A Preferred Stock for which such conversion was not timely
honored, together with interest thereon at a rate of 15% per annum, accruing
until such amount and any accrued interest thereon is paid in full (which amount
shall be paid as liquidated damages and not as a penalty). The Holder shall
provide the Corporation written notice indicating the amounts payable to the
Holder in respect of the Buy-In, which shall include evidence of the price at
which such Holder had to purchase the Common Stock in an open-market transaction
or otherwise.
(m) The
Corporation understands that a delay in the delivery of Common Stock upon
conversion of Series A Preferred Stock in the form required pursuant to this
Certificate of Designation and the applicable Subscription Agreement after the
Delivery Date could result in economic loss to the Holder. As
compensation to the Holder for such loss, the Corporation agrees to pay (as
liquidated damages and not as a penalty) to the Holder for such late issuance of
Common Stock upon Conversion of the Series A Preferred Stock in the amount of
$100 per business day after the Delivery Date for each $10,000 of Obligation
Amount being converted of the corresponding Common stock which is not timely
delivered. The Corporation shall pay any payments incurred under this
section in immediately available funds upon demand. Furthermore, in
addition to any other remedies which may be available to the Holder, in the
event that the Corporation fails for any reason to effect delivery of the Common
Stock by the Delivery Date, the Holder will be entitled to revoke all or part of
the relevant Notice of Conversion or rescind all by delivery of a notice to such
effect to the Corporation, whereupon the Corporation and the Holder shall each
be restored to their respective positions immediately prior to the delivery of
such notice, except that the liquidated damages described above shall be payable
through the date notice of revocation is given to the
Corporation.
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(n) Upon (i) the occurrence of
an Event of Default (as
defined in this Certificate of
Designation), that continues for more
than twenty (20) business days after any applicable
grace period, (ii) a Change in
Control (as defined in the Subscription
Agreement), or (iii) of the liquidation,
dissolution or winding up of the Company, then at the Holder’s election, the
Corporation must pay to
the
Holder,
ten (10) business days after
request by the Holder (the “Calculation
Period”),
a sum of money determined by multiplying the then current purchase
price of the outstanding Preferred Stock designated by
the
Holder by
110%, plus accrued but
unpaid dividends (”Mandatory
Redemption Payment”). The Mandatory
Redemption Payment must be received by such Holder not later
than thirty (30) business days after
request (“Mandatory
Redemption Payment Date”). Upon receipt of the
Mandatory Redemption Payment, the corresponding Series A Preferred
Stock and
dividends will be deemed paid
and no longer outstanding. For purposes of this Section, “Change
in Control” shall mean (i) the
Corporation no longer having a
class of shares publicly traded, listed or quoted, as
applicable, on a Principal Market,
(ii) the Corporation becoming a Subsidiary
of another entity (other than a corporation formed by the Corporation for purposes of
reincorporation in another U.S. jurisdiction), (iii) a majority of the board of
directors of the Corporation as of the Closing
Date no longer serving as
directors of the Corporation, except due to natural
causes, and (iv) the sale, lease or transfer of substantially all the assets of
the Corporation or
Subsidiaries.
E. Voting
Rights. The Holders of shares of Series A Preferred
Stock shall not vote together with the holders of the Common Stock on an as
converted basis, provided,
however, that the consent of the Holders shall be required for the
following actions:
(a) amending
the Corporation’s certificate of incorporation or by-laws if such amendment
would adversely affect the Series A Preferred Stock, including, without
limitation,:
(i) changing
the relative seniority rights of the holders of the Series A Preferred Stock as
to the payment of dividends in relation to the holders of any other capital
stock of the Corporation, or create any other class or series of capital stock
entitled to seniority as to the payment of dividends in relation to the holders
of Series A Preferred Stock;
(ii) reducing
the amount payable to the holders of Series A Preferred Stock upon the voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, or
change the relative seniority of the liquidation preferences of the holders of
Series A Preferred Stock to the rights upon liquidation of the holders of other
capital stock of the Corporation, or change the dividend rights of the holders
of Series A Preferred Stock;
(iii) canceling
or modifying the conversion rights of the holders of Series A Preferred Stock
provided for in Section D herein;
(iv) canceling
or modifying the rights of the holders of the Series A Preferred Stock provided
for in this Section E; or
(v) changing
the authorized number of shares of Series A Preferred Stock.
(b) purchasing
any of the Corporation’s securities other than required redemptions of Series A
Preferred Stock and repurchase under restricted stock and option agreements
authorizing the Corporation’s employees (as permitted herein);
(c) effecting
a Liquidation Event;
(d) declaring
or paying any dividends other than in respect of the Series A Preferred Stock;
and
(e) issuing
any additional securities having rights senior to or on parity with the Series A
Preferred Stock.
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3. Events of
Default. For so long as the Series A Preferred Stock is
outstanding, unless waived in writing by the Holders, the occurrence of any of
the following is an event of default (each, an “Event of Default”) and shall
thereafter or until such Event of Default has been cured, if such Event of
Default is permitted to be cured hereunder, cause the dividend rate to become
15% from and after the occurrence and during the pendency of such event with
respect to the Series A Preferred Stock:
(a) The
Corporation fails to timely pay any dividend payment or the failure to timely
pay any other sum of money due to a Holder of Series A Preferred Stock from the
Corporation pursuant to the Subscription Agreement or any other Transaction
Document.
(b) The
Corporation breaches any material covenant or other material term or condition
of the Subscription Agreement or this Certificate of Designation in any material
respect and such breach, if subject to cure, continues for a period of five (5)
business days.
(c) Any
material representation or warranty of the Corporation made herein, in any other
Transaction Document (as defined in Section 5(c) of the Subscription Agreement),
or in any agreement, statement or certificate given in writing pursuant hereto
or in connection herewith or therewith shall be false or misleading in any
material respect as of the date made and as of the Closing Date.
(d) Any
dissolution, liquidation or winding up of Corporation or any substantial portion
of its business.
(e) Any
continued cessation of operations by the Corporation or any material Subsidiary
for thirty (30) days or more or the Corporation is unable to pay its debts after
such debts become due.
(f) The
transfer or sale by the Corporation or any material Subsidiary of any material
Intellectual Property (as disclosed on Schedule 9(l) of the
Subscription Agreement), personal property, real property or other assets which
are necessary to conduct its business (whether now or in the future),without
receiving fair value.
(g) The
merger, consolidation or reorganization of the Corporation with or into another
corporation or person or entity (other than with or into a wholly owned
subsidiary of the Corporation), or sale of the capital stock of the
Corporation by the Corporation or the holders thereof, in any case under
circumstances in which the holders of a majority of the voting power of the
outstanding capital stock of Corporation immediately prior to such transaction
owning less than a majority in voting power of the outstanding capital stock of
Corporation or the surviving or resulting corporation or other entity, as the
case may be, immediately following such transaction.
(h) The
Corporation or any material Subsidiary shall make an assignment for the benefit
of creditors, or apply for or consent to the appointment of a receiver or
trustee for it or for a substantial part of its property or business; or such a
receiver or trustee shall otherwise be appointed.
(i) Any
money judgment, writ or similar final process shall be entered or filed against
the Corporation or its material Subsidiary or any of their property or other
assets for more than $100,000, and shall remain unpaid, unvacated, unbonded or
unstayed for a period of forty-five (45) days.
(j) Bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings or
relief under any bankruptcy law or any law, or the issuance of any notice in
relation to such event, for the relief of debtors shall be instituted by or
against the Corporation and/or any material Subsidiary.
(k) Failure
of the Corporation’s Common Stock to be listed for trading or quotation on the
NYSE Amex Equities, Nasdaq Capital Market, Nasdaq Global Market, Nasdaq Global
Select Market, Bulletin Board, or New York Stock Exchange (whichever of the
foregoing is at the time the principal trading exchange or market for the Common
Stock (the “Principal
Market”) for a period of ten (10) consecutive trading
days.
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(l) A default by the Corporation or
any material Subsidiary under any
one or more obligations in an aggregate monetary amount in excess of $100,000
for more than twenty (20) days after the due date, unless the Corporation
or its material Subsidiary
is contesting the validity of such obligation in good faith.
(m) A
Commission or judicial stop trade order or Principal Market trading suspension
with respect to the Corporation’s Common Stock that lasts for ten (10) or more
consecutive trading days.
(n) The
failure by the Corporation to have reserved for issuance upon conversion of the
Series A Preferred Stock the number of shares of Common Stock as required in the
Subscription Agreement.
(o) A
default by the Corporation or any material Subsidiary of a material term,
covenant, warranty or undertaking of any other agreement to which the
Corporation or any material Subsidiary and Holder are parties, or the occurrence
of a material event of default under any such other agreement which is not cured
after any required notice and/or cure period.
(p) The occurrence of one or more events
having a Material Adverse Effect (as defined in Section 5(a) of the Subscription
Agreement).
(q) The Corporation effectuates a reverse
split of its Common Stock without twenty (20) days prior written notice to the
Holders.
(r) The restatement of any financial
statements filed by the Corporation for any date or period from and after two
years prior to the Issue Date of this Certificate of Designation, if the result
of such restatement would, by comparison to the unrestated financial statements,
have constituted a Material Adverse Effect.
(s) The Corporation’s failure to
timely deliver to the Holder of Series A Preferred Stock Common Stock issuable
upon conversion of the Series A Preferred Stock or a replacement Preferred Stock
certificate (if required) within five (5) business days after the required
delivery date.
4.
Status of Converted or
Redeemed Stock. In case any shares of Series A Preferred Stock
shall be redeemed or otherwise repurchased or reacquired, the shares so
redeemed, repurchased, or reacquired shall resume the status of authorized but
unissued shares of preferred stock, and shall no longer be designated as Series
A Preferred Stock.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to
be signed by its duly authorized officer on December 7, 2010.
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GoEnergy,
Inc.
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By:
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/s/ Gareb Shamus
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Name:
Gareb Shamus
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Title:
President and Chief Executive
Officer
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EXHIBIT
A
NOTICE
OF CONVERSION
(To Be
Executed By the Registered Holder in Order to Convert Series A Preferred Stock
of Wizard World, Inc.)
The
undersigned hereby irrevocably elects to convert $______________ of the Series A
Stated Value of the above Series A Preferred Stock into shares of Common Stock
of Wizard World, Inc. (the “Corporation”) according to the
conditions hereof, as of the date written below.
The
undersigned hereby irrevocably elects to convert $______________ of the
dividends accrued on the Series A Preferred Stock held by the undersigned for
the period ________________ to _____________ into shares of Common Stock of the
Corporation according to the conditions hereof, as of the date written
below.
The
undersigned hereby irrevocably elects to convert $____________ of the Obligation
Amount consisting of ___________________________ for the period ____________ to
______________ into shares of Common Stock of the Corporation according to the
conditions hereof, as of the date written below.
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Date of Conversion:
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Applicable Conversion Price Per Share:
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Number of Common Shares Issuable Upon This Conversion:
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Select
one:
¨ A
Series A Convertible Preferred Stock certificate is being delivered
herewith. The unconverted portion of such certificate should be
reissued and delivered to the undersigned.
¨ A
Series A Convertible Preferred Stock certificate is not being delivered to
Wizard World, Inc.
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Signature:
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Print Name:
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Address:
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Deliveries
Pursuant to this Notice of Conversion Should Be Made to:
- 10
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