AMENDED CERTIFICATE TO SET FORTH DESIGNATIONS, VOTING POWERS,
PREFERENCES, LIMITATIONS, RESTRICTIONS, AND RELATIVE
RIGHTS OF SERIES F CONVERTIBLE
PREFERRED STOCK, $.001 PAR VALUE PER SHARE
It is hereby certified that:
I. The name of the corporation is China Premium Food Corporation
(the "Corporation"), a Delaware corporation.
II. Set forth hereinafter is a statement of the voting powers,
preferences, limitations, restrictions, and relative rights of shares of
Series F Convertible Preferred Stock hereinafter designated as contained in
a resolution of the Board of Directors of the Corporation pursuant to a
provision of the Articles of Incorporation of the Corporation permitting the
issuance of said Series F Convertible Preferred Stock by resolution of the
Board of Directors:
Series F Convertible Preferred Stock, $.001 par value.
1. Designation: Number of Shares. The designation of said series
of Preferred Stock shall be Series F Convertible Preferred Stock (the
"Series F Preferred Stock"). The number of shares of Series F Preferred
Stock shall be 200,000. Each share of Series F Preferred Stock shall have a
stated value equal to $10 (as adjusted for any stock dividends, combinations
or splits with respect to such shares) (the "Stated Value"), and a par value
of $0.001 per Series F Preferred Share.
2. Dividends, Distributions and Liquidation Rights. The Holders of
outstanding shares of Series F Preferred Stock shall be entitled to
dividends and distributions (whether in cash or property or securities,
including dividends and distributions which are paid or intended to be paid
in connection with distributions of the Corporation's assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation) when declared by the Corporations' Board of Directors on the
Common Stock (as defined in Section 3(i) below) on an as converted basis,
together with payments to the holders of the Common Stock. Each share of
Series F Preferred Stock with respect to dividend payments shall be equal in
every respect to every other share of Series F Preferred Stock.
3. Conversion into Common Stock. Shares of Series F Preferred
Stock shall have the following conversion rights and obligations:
(a) Subject to the further provisions of this paragraph 3 each
Holder of shares of Series F Preferred Stock shall have the right at
any time commencing after the filing of this Certificate of
Designation with the Office of the Secretary of State of Delaware, to
convert such shares into fully paid and non-assessable shares of
Common Stock of the Corporation (as defined in paragraph 3(i) below)
determined in accordance with the Conversion Price provided in
paragraph 3(b) below (the "Conversion Price"); provided, that the
aggregate Stated Value to be converted shall be at least $10,000
(unless if at the time of such conversion the aggregate Stated Value
of all shares of Series F Preferred Stock registered to the Holder is
less than $10,000, then the whole amount may be converted).
(b) The number of shares of Common Stock issuable upon
conversion of each share of Series F Preferred Stock shall equal the
Stated Value per share divided by the Conversion Price. The
Conversion Price shall be, at the election of the Holder, (x) $.60, or
(y) 75% of the average of the three (3) lowest Closing Bid Prices for
the twenty-two (22) days immediately preceding the conversion of the
respective shares of Series F Preferred Stock (Lookback Period"). The
Closing Bid Price shall mean the closing bid price of the
Corporation's Common Stock as reported by the NASD OTC Bulletin Board
or the principal exchange or market where traded.
(c) The Holder of any certificate for shares of Series F
Preferred Stock desiring to convert any of such shares may give notice
of its decision to convert the shares into common stock by delivering
or telecopying an executed and completed notice of conversion to the
Corporation or the Corporation's Transfer Agent, (but only if such
Transfer Agent is appointed by the Company as transfer agent for the
Series F Preferred Stock) and delivering within three business days
thereafter, the original notice of conversion and the certificate for
the Preferred Stock properly endorsed for or accompanied by duly
executed instruments of transfer (and such other transfer papers as
said Transfer Agent may reasonably require) to the Corporation or the
Corporation's Transfer Agent. Each date on which a notice of
conversion is delivered or telecopied to the Corporation or the
Corporation's Transfer Agent in accordance with the provisions hereof
shall be deemed a Conversion Date. A form of Notice of Conversion
that may be employed by a Holder is annexed hereto as Exhibit A. The
Corporation will transmit the certificates representing the shares of
common stock issuable upon conversion of any Series F Preferred Stock
(together with the Series F Preferred Stock representing the shares
not converted) to the Holder via express courier, by electronic
transfer or otherwise, within three business days after receipt by the
Corporation of the original notice of conversion and the Series F
Preferred Stock representing the shares to be converted ("Delivery
Date"). The Holder of the shares so surrendered for conversion shall
be entitled to receive on or before the Delivery Date a certificate or
certificates which shall be expressed to be fully paid and non-
assessable for the number of shares of Common Stock to which such
Holder shall be entitled upon such conversion registered in the name
of such Holder. In the case of any Series F Preferred Stock which is
converted in part only the Holder of shares of Series F Preferred
Stock shall upon delivery of the certificate or certificates
representing Common Stock also receive a new share certificate
representing the unconverted portion of the shares of Series F
Preferred Stock. Nothing herein shall be construed to give any Holder
of shares of Series F Preferred Stock surrendering the same for
conversion the right to receive any additional shares of Common Stock
or other property which results from an adjustment in conversion
rights under the provisions of paragraph (d) or (e) of this paragraph
3 until Holders of Common Stock are entitled to receive the shares or
other property giving rise to the adjustment.
In the case of the exercise of the conversion rights set forth
in paragraph 3(a) 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 or Transfer Agent of the Notice of
Conversion. The person or entity entitled to receive Common Stock
issuable upon such conversion shall, on the date such conversion
privilege is deemed to have been exercised and thereafter, be treated
for all purposes as the record Holder 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 F Preferred Stock so converted.
The Corporation shall not be required, in connection with any
conversion of Series F Preferred Stock, to issue a fraction of a
share of its Common Stock and shall instead deliver a stock
certificate representing the next whole number.
The Corporation and Holder may not convert that amount of the
Series F Preferred Stock on a Conversion Date in connection with that
number of shares of Common Stock which would be in excess of the sum
of (i) the number of shares of Common Stock beneficially owned by the
Subscriber and its affiliates on such Conversion Date, and (ii) the
number of shares of Common Stock issuable upon the conversion of the
Series F Preferred Stock with respect to which the determination of
this proviso is being made on such Conversion Date, which would result
in beneficial ownership by the Holder and its affiliates of more than
9.99% 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 Securities Exchange Act of 1934, as amended, and
Regulation 13d-3 thereunder. The Holder may allocate which of the
equity of the Corporation deemed beneficially owned by the Holder
shall be included in the 9.9% amount described above and which shall
be allocated to the excess above 9.99%.
(d) The Conversion Price shall be subject to adjustment from
time to time as follows:
(i) In case the Corporation shall at any time (A) split
or subdivide the outstanding Common Stock, (B) combine the
outstanding Common Stock into a smaller number of shares, or (C)
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 F 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 F 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 pursuant to this paragraph
3(d)(i) shall become effective immediately after the effective
date of the event retroactive to the record date, if any, for
the event.
(e) (i) 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 F Preferred Stock shall have terminated, as part of
such merger lawful provision shall be made so that Holders of Series F
Preferred Stock shall thereafter have the right to convert each share
of Series F 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 F 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 paragraph (d)
of this paragraph 3. The foregoing provisions of this paragraph 3(e)
shall similarly apply to successive mergers.
(ii) 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 F Preferred
Stock shall thereafter have the right to convert each share of the
Series F 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 F Preferred Stock is required to be adjusted as provided
in this paragraph 3, 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 F Preferred Stock and the
Common Stock; and the Corporation shall mail to each Holder of record
of Series F Preferred Stock notice of such adjusted conversion price.
(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 Transfer Agent for the Series F Preferred Stock and for
the Common Stock and to the Holders of record of the Series F
Preferred Stock.
(h) So long as any shares of Series F Preferred Stock shall
remain outstanding and the Holders thereof shall have the right to
convert the same in accordance with provisions of this paragraph 3 the
Corporation shall at all times reserve from the authorized and
unissued shares of its Common Stock a sufficient number of shares to
provide for such conversions.
(i) The term Common Stock as used in this paragraph 3 shall
mean the $.001 par value 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 of other securities
and/or property into which the shares of Series F Preferred Stock
shall at any time become convertible pursuant to the provisions of
this paragraph 3.
(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
F Preferred Stock, but all transfer taxes and income taxes that may be
payable in respect of any change of ownership of Series F 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 F 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, unless, an injunction from a court, on notice,
restraining and or enjoining conversion of all or part of said shares
of Series F Preferred Stock shall have been issued and the Corporation
posts a surety bond for the benefit of such Holder in the amount of
125% of the Stated Value of the Series F Preferred Stock and dividends
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 it 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 3(c) by the Delivery Date and if
after the Delivery Date 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) 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 Stated Value of the shares of Series F
Preferred Stock for which such conversion was not timely honored,
together with interest thereon at a rate of 16% 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). For example, if the Holder purchases shares of Common Stock
having a total purchase price of $11,000 to cover a Buy-In with
respect to an attempted conversion of $10,000 of Stated Value of
Series F Preferred Stock, the Corporation shall be required to pay the
Holder $1,000, plus interest. The Holder shall provide the
Corporation written notice indicating the amounts payable to the
Holder in respect of the Buy-In.
4. Voting Rights. The shares of Series F Preferred Stock shall not
have voting rights.
5. Event of Default. Upon the occurrence of any of the following
events of default ("Event of Default"), after the applicable period to cure
the Event of Default, the Holder shall have the option to require the
Corporation to redeem the Series F Preferred Stock held by such Holder by
the immediate payment to the Holder by the Corporation of a sum of money
equal to the Stated Value of the Series F Preferred Stock held by the Holder
multiplied by 125%:
(a) The Corporation fails to pay any sum of money due to the
Holder from the Company (excluding dividends) and such failure
continues for a period of ten (10) days after written notice to the
Corporation from the Holder.
(b) The Corporation breaches any material covenant, term or
condition of the Subscription Agreement entered into between the
Corporation and Holder relating to Series F Preferred Stock or in this
Certificate of Designation, and such breach continues for a period of
seven (7) days after written notice to the Corporation from the
Holder.
(c) Any material representation or warranty of the Corporation
made in the Subscription Agreement, or in any agreement, statement or
certificate given in writing pursuant thereto shall be false or
misleading.
(d) The Corporation shall make an assignment of a substantial
part of its property or business 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.
(e) Any money judgment, confession of judgment, writ or
similar process shall be entered against the Corporation or its
property or other assets for more than $100,000, and is not vacated,
satisfied, bonded or stayed within 45 days.
(f) Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings or relief under any bankruptcy law or
any law for the relief of debtors shall be instituted by or against
the Corporation.
(g) The failure to maintain a listing of the Common Stock on
the NASD OTC Bulletin Board (or successor market, if any).
(h) An order entered by a court of competent jurisdiction, or
by the Securities and Exchange Commission, or by the National
Association of Securities Dealers, preventing purchase and sale
transactions in the Corporation's Common Stock.
(i) The Corporation's failure to timely deliver Common Stock
to the Holder pursuant to paragraph 4 hereof or the Subscription
Agreement.
(j) The occurrence of a Non-Registration Event as described in
Section 10.4 of the Subscription Agreement.
6. Status of Converted or Redeemed Stock. In case any shares of
Series F Preferred Stock shall be redeemed or otherwise repurchased or
reacquired, the shares so redeemed, converted, or reacquired shall resume
the status of authorized but unissued shares of Preferred Stock and shall no
longer be designated as Series F Preferred Stock.
CHINA PREMIUM FOOD CORPORATION
Dated: October 4, 2000 By:_________________________________
Roy G. Warren, President
EXHIBIT A
NOTICE OF CONVERSION
(To Be Executed By the Registered Holder in Order to Convert the Series F
Convertible Preferred Stock of China Premium Food Corporation)
The undersigned hereby irrevocably elects to convert $______________
of the Stated Value of the above Series F Convertible Preferred Stock into
shares of Common Stock of China Premium Food Corporation (the "Corporation")
according to the conditions hereof, as of the date written below.
Date of Conversion:_______________________________________________
Applicable Conversion Price Per Share:____________________________
Number of Common Shares Issuable Upon This Conversion:____________
Signature:________________________________________________________
Print Name:_______________________________________________________
Address:__________________________________________________________
__________________________________________________________________
Deliveries Pursuant to this Notice of Conversion Should Be Made to:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________