Exhibit 4.1
CERTIFICATE TO SET FORTH DESIGNATIONS, VOTING POWERS,
PREFERENCES, LIMITATIONS, RESTRICTIONS, AND RELATIVE
RIGHTS OF SERIES I 8% CUMULATIVE CONVERTIBLE
PREFERRED STOCK, $.001 PAR VALUE PER SHARE
It is hereby certified that:
I. The name of the corporation is Bravo! Food International Corp.
(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 I 8% Cumulative 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 I 8% Cumulative Convertible
Preferred Stock by resolution of the Board of Directors:
Series I 8% Cumulative Convertible Preferred Stock, $.001 par value.
1. Designation: Number of Shares. The designation of said series
of Preferred Stock shall be Series I 8% Cumulative Convertible Preferred
Stock (the "Series I Preferred Stock"). The number of shares of Series I
Preferred Stock shall be 200,000. Each share of Series I 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 $.001 par value.
2. Dividends.
(a) The Holders of outstanding shares of Series I Preferred Stock
shall be entitled to receive preferential dividends in cash out of any
funds of the Corporation legally available at the time for declaration of
dividends before any dividend or other distribution will be paid or
declared and set apart for payment 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") at the rate of 8% simple interest per annum on the Stated Value per
share payable quarterly commencing with the period ending December 31, 2002
when as and if declared, at the Holder's option however that dividend
payments may be made in additional fully paid and non assessable shares of
Series I Preferred Stock at a rate of one share of Series I Preferred Stock
for each $10 of such dividend not paid in cash, and the issuance of such
additional shares shall constitute full payment of such dividend.
(b) The dividends on the Series I Preferred Stock at the rates
provided above shall be cumulative whether or not earned so that, if at any
time full cumulative dividends at the rate aforesaid on all shares of the
Series I Preferred Stock then outstanding from the date from and after
which dividends thereon are cumulative to the end of the quarterly 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 I 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 (but without
interest thereon) 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 I Preferred Stock or any shares of any
other class of stock ranking on a parity with the Series I Preferred Stock
("Parity 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 Junior Stock.
(c) Dividends on all shares of the Series I Preferred Stock shall
begin to accrue and be cumulative from and after the date of issuance
thereof. A dividend period shall be deemed to commence on the day following
a semi-annual dividend payment date herein specified and to end on the next
succeeding semi-annual dividend payment date herein specified.
3. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding-up of the
Corporation, whether voluntary or involuntary, the Holders of the Series I
Preferred Stock shall be entitled to receive before any payment or
distribution shall be made on the Junior Stock, out of the assets of the
Corporation available for distribution to stockholders, the Stated Value
per share of Series I Preferred Stock and all accrued and unpaid dividends
to and including the date of payment thereof. Upon the payment in full of
all amounts due to Holders of the Series I Preferred Stock the Holders of
the Common Stock of the Corporation and any other class of Junior Stock
shall 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 I Preferred Stock shall be insufficient to
permit payment in full of the amounts payable as aforesaid to the Holders
of Series I Preferred Stock upon such liquidation, dissolution or winding-
up, whether voluntary or involuntary, then all such assets of the
Corporation shall be distributed to the exclusion of the Holders of shares
of Junior Stock ratably among the Holders of the Series I Preferred Stock.
(b) The purchase or the redemption by the Corporation of shares of
any class of stock, the merger or consolidation of the Corporation with or
into any other corporation or corporations or the sale or transfer by the
Corporation of all or any part of its assets shall be deemed to be a
liquidation, dissolution or winding-up of the Corporation for the purposes
of this paragraph 3.
4. Conversion into Common Stock. Shares of Series I Preferred
Stock shall have the following conversion rights and obligations:
(a) Subject to the further provisions of this paragraph 4 each
Holder of shares of Series I Preferred Stock shall have the right at any
time commencing after the issuance to the Holder of Series I Preferred
Stock, to convert such shares into fully paid and non-assessable shares of
Common Stock of the Corporation (as defined in paragraph 4(i) below)
determined in accordance with the Conversion Price provided in paragraph
4(b) below (the "Conversion Price"). All issued or accrued but unpaid
dividends may be converted at the election of the Holder simultaneously
with the conversion of principal amount of Stated Value of Series I
Preferred Stock being converted.
(b) The number of shares of Common Stock issuable upon conversion
of each share of Series I Preferred Stock shall equal (i) the sum of (A)
the Stated Value per share and (B) at the Holder's election accrued and
unpaid dividends on such share, divided by (ii) the Conversion Price. The
Conversion Price shall be 75% of the average of the three (3) lowest
Closing Bid Prices for the thirty (30) days immediately preceding the
conversion of the respective shares of Series I Preferred Stock (Lookback
Period"), but not less than $.30 for the 270 days after the initial issue
date of Series I Preferred Stock ("Initial Period") unless an Event of
Default as described in Section 8 hereof shall have occurred. In the event
(i) the closing Common Stock trading price for any consecutive fifteen day
trading period is $.50 or higher, and (ii) the daily trading volume for
each such fifteen trading days is 150,000 or more shares of Common Stock,
and (iii) the registration statement described in Section 10.1(iv) of the
Subscription Agreement (as defined hereinafter) is effective for each such
fifteen trading days, then the Initial Period shall be extended
indefinitely but shall terminate immediately upon the occurrence of an
Event of Default as described in Section 8 hereof. 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 I 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 and delivering within three business days thereafter, the
original 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. Each date on which a notice of conversion is delivered or
telecopied to the Corporation 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 I Preferred Stock (together with the
Series I Preferred Stock representing the shares not converted) to the
Holder via express courier, by electronic transfer or otherwise, within
five business days after receipt by the Corporation of the original or
telecopied notice of conversion and the Series I 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. The Corporation is obligated to
deliver to the Holder simultaneously with the aforedescribed Common Stock,
at the election of the Holder, additional Common Stock representing the
conversion at the Conversion Price, of dividends accrued on the Series I
Preferred Stock being converted. In the case of any Series I Preferred
Stock which is converted in part only the Holder of shares of Series I
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 I Preferred Stock. Nothing
herein shall be construed to give any Holder of shares of Series I
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 4 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 4(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 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 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 I Preferred Stock so converted.
Upon the conversion of any shares of Series I 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 Series I Preferred Stock, and payment of dividends on Series
I Preferred Stock to issue a fraction of a share of its Series I Preferred
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
I Preferred Stock on a Conversion Date in amounts inconsistent with the
limitations set forth in the subscription agreement entered into by the
Corporation and Holder (or Holder's predecessor) relating to the issuance
of the Series I Preferred Stock ("Subscription Agreement") or 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 Series I 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. Subject to the foregoing, the Holder shall not
be limited to successive exercises which would result in the aggregate
issuance of more than 9.99%. The Holder may revoke the conversion
limitation described in this Paragraph upon 75 days prior notice to the
Corporation. The Holder may allocate which of the equity of the Corporation
deemed beneficially owned by the Holder shall be included in the 9.99%
amount described above and which shall be allocated to the excess above
9.99%.
(d) The Conversion Price determined pursuant to Paragraph 4(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 I 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 I
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 I
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 4(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 I Preferred Stock
shall have terminated, as part of such merger lawful provision shall be
made so that Holders of Series I Preferred Stock shall thereafter have the
right to convert each share of Series I 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 I 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 4. The foregoing provisions of this paragraph 4(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 I Preferred Stock shall thereafter have the right to
convert each share of the Series I 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 I Preferred Stock is required to be adjusted as provided in this
paragraph 4, 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 I Preferred Stock and the Common Stock; and the
Corporation shall mail to each Holder of record of Series I 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 I Preferred Stock and for the Common Stock and to the Holders of
record of the Series I Preferred Stock.
(h) So long as any shares of Series I Preferred Stock shall remain
outstanding and the Holders thereof shall have the right to convert the
same in accordance with provisions of this paragraph 4 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 4 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 I Preferred Stock shall at any
time become convertible pursuant to the provisions of this paragraph 4.
(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 I Preferred
Stock, but all transfer taxes and income taxes that may be payable in
respect of any change of ownership of Series I 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 I 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 I Preferred Stock shall have been issued and the Corporation posts a
surety bond for the benefit of such Holder in the amount of 150% of the
Stated Value of the Series I 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 4(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)
within five (5) business days of 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 Stated Value of the shares of Series I 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 I 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.
5. Voting Rights. The shares of Series I Preferred Stock shall not
have voting rights except as described in Section 6 hereof.
6. Restrictions and Limitations.
(a) Amendments to Charter. The Corporation shall not amend its
certificate of incorporation without the approval by the holders of at
least a majority of the then outstanding shares of Series I Preferred Stock
if such amendment would:
(i) change the relative seniority rights of the holders of
Series I 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 I Preferred Stock;
(ii) reduce the amount payable to the holders of Series I
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 I
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 I Preferred Stock;
(iii) cancel or modify the conversion rights of the holders of
Series I Preferred Stock provided for in Section 4 herein; or
(iv) cancel or modify the rights of the holders of the Series
I Preferred Stock provided for in this Section 6.
7. Event of Default. The occurrence of any of the following events
of default ("Event of Default") shall, after the applicable period to cure
the Event of Default, cause the dividend rate of 8% described in paragraph
2 hereof to become 15% from and after the occurrence of such event, and the
Holder shall have the option to require the Corporation to redeem the
Series I Preferred Stock held by such Holder by the immediate payment to
the Holder by the Corporation of a sum of money equal to the number of
shares that would be issuable upon conversion of an amount of Stated Value
and accrued dividends designated by the Holder at the Conversion Price in
effect as of the trading day prior to the date notice is given to the
Corporation by the Holder multiplied by the average of the closing ask
prices and closing bid prices of the Corporation's Common Stock for the
same days employed when determining such Conversion Price:
(a) The Corporation fails to pay any dividend payment
required to be paid pursuant to the terms of paragraph 2 hereof or
the failure to timely pay any other sum of money due to the Holder
from the Corporation 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 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, which for
the purpose of the remedy of redemption, does not include the
Effective Date requirements of Section 10.4 of the Subscription
Agreement.
(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 or any of its subsidiaries 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, a
subsidiary of the Corporation, or their property or other assets for
more than $50,000, 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 or any of its subsidiaries, and is not
dismissed within 45 days.
(g) 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.
(h) The Corporation's failure to timely deliver Common Stock
to the Holder pursuant to paragraph 4 hereof or the Subscription
Agreement.
(i) The occurrence of a Non-Registration Event as described
in Section 10.4 of the Subscription Agreement, which for the purpose
of the remedy of redemption, does not include the Effective Date
requirements of Section 10.4 of the Subscription Agreement.
(j) Delisting of the Common Stock from the NASD OTC Bulletin
Board or such other principal exchange on which the Common Stock is
listed for trading; notification that the Corporation is not in
compliance with the conditions for such continued listing; or non-
compliance with the requirements for such continued listing that is
not remedied within 45 days.
8. Status of Converted or Redeemed Stock. In case any shares of
Series I 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 I Preferred Stock.
Dated: June 14, 2002
BRAVO! FOODS INTERNATIONAL CORP.
By: /s/ Roy G. Warren
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Roy G. Warren, Chief Executive Officer