Exhibit 4.1
BOARD RESOLUTION ESTABLISHING AND APPROVING THE DESIGNATION,
PREFERENCES AND RIGHTS OF SERIES A PREFERENCE SHARES OF
AEGEAN EARTH AND MARINE CORPORATION
A meeting of the Board of Directors of Aegean Earth And Marine
Corporation (the "Company") held on the 15th day of January, 2008
PRESENT: Joseph Rozelle, President and Chairman of the Company.
David Richardson, Director of the Company
By agreement Joe Rozelle acted as Chairman of the meeting and
David Richardson acted as Secretary.
Notice of Quorum
The Chairman noted that due notice of the meeting had been given
that all directors were present in person and/or by phone that
the meeting could proceed to business.
WHEREAS, pursuant to the authority conferred, granted and
vested upon the Board of Directors by the Memorandum & Articles
of Association of the Company (the "Articles of Association"),
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and in accordance with the Companies Law of the Cayman Islands
(2004 Revision), the said Board of Directors, as of January 15,
2008 adopted the following resolutions creating a series of Five
Million (5,000,000) Preference Shares, designated as "Series A
Convertible Preference Shares," none of which shares have been
issued;
RESOLVED, that the Company is authorized to issue Five
Million (5,000,000) shares of its Series A Convertible Preference
Shares (the "Preference Shares"), par value $0.00064 per share,
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which shall have the powers, designations, preferences and other
special rights set forth below.
(1) Voting Rights. Except as otherwise provided herein, in
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the Articles of Association or as required by law, the holders of
the Preference Shares shall have no voting rights.
(2) Stated Value. Each Preference Share shall have a
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"Stated Value" equal to Three Dollars ($3.00).
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(3) Redemption. Commencing six (6) months after the date of
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issuance of the Preference Shares (such date for each Preference
Share herewith referred to as the "Original Issue Date"), the
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Company at its sole option, may repurchase all or any portion of
the principal amount of such Preference Shares outstanding at any
time (the "Redemption Date"), together with any accrued and
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unpaid dividends hereunder by paying, in exchange for each
Preference Share to be redeemed, a cash payment equal to the
Stated Value per each such Preference Share plus all accrued and
unpaid dividends through and including the date of payment (the
"Redemption Amount").
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(4) Conversion of Preference Shares. Preference Shares
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shall be convertible into Ordinary Shares on the terms and
conditions set forth in this Section 4. The term "Conversion
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Shares" shall mean the Ordinary Shares issuable upon conversion
of the Preference Shares. The Company shall not issue any
fraction of a Ordinary Share upon any conversion. All Ordinary
Shares (including fractions thereof) issuable upon conversion
of more than one Preference Share by a Holder shall be
aggregated for purposes of determining whether the conversion
would result in the issuance of a fraction of a Ordinary Share.
If, after the aforementioned aggregation, the issuance would
result in the issuance of a fraction of a Ordinary Share,
the Company shall, in lieu of issuing such fractional share,
issue one whole Ordinary Share to the Holder thereof. The
Company shall pay any and all taxes that may be payable with
respect to the issuance and delivery of Ordinary Shares upon
conversion of Preference Shares unless such taxes result from
the issuance of Ordinary Shares upon conversion to a person other
than the Holder.
(a) Optional Conversion. Commencing thirty (30) months
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after the Original Issuance Date, any Holder shall be entitled to
convert all or a portion of such Holder's Preference Shares into
fully paid and non-assessable Ordinary Shares (each an "Optional
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Conversion"), in accordance with this Section 4(a) and
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Sections 4(b) and 4(c).
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(b) Conversion Price. Subject to anti-dilution
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adjustment as provided in Section 4(d), upon an Optional
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Conversion pursuant to Section 4(a), the conversion price (the
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"Conversion Price") of each Preference Share shall be $0.50.
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Each Preference Share will convert into that number of Ordinary
Shares determined by dividing the Stated Value by the Conversion
Price, as adjusted at the time of conversion.
(c) Mechanics of Conversion.
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(i) To convert Preference Shares into Conversion
Shares pursuant to Section 4(a) on any date commencing thirty
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(30) months after the Original Issuance Date, the Holder thereof
shall (i) transmit by facsimile (or otherwise deliver), for
receipt on or prior to 11:59 p.m. Eastern Time on such date, a
copy of an executed notice of conversion (the "Conversion
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Notice") to the Company, and (ii) surrender to a common carrier
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for delivery to the Company within three (3) business days of
such date the Preference Share Certificates (as hereinafter
defined) representing the Preference Shares being converted (or
an indemnification undertaking with respect to such shares in the
case of their loss, theft or destruction). The term "Preference
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Share Certificates" shall mean, the original certificates
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representing the Preference Shares.
(ii) On or before the third (3rd) Business Day
following the date of receipt of a fully executed and completed
Conversion Notice, the Company shall (x) issue and deliver to the
address as specified in the Conversion Notice, a certificate,
registered in the name of the Holder of Preference Shares or its
designee, for the number of Ordinary Shares to which the Holder
of Preference Shares shall be entitled, or (y) provided that the
Conversion Shares have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), upon the request of a
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Holder of Preference Shares, credit such aggregate number of
Ordinary Shares to which the Holder of Preference Shares shall be
entitled to such Holder's or its designee's balance account with
the Depository Trust Company through its Deposit Withdrawal Agent
Commission system. If the number of Preference Shares represented
by the Preference Share Certificate(s) submitted for conversion
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pursuant to Section 4(d)(i) is greater than the number of
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Preference Shares being converted, then the Company shall, as
soon as practicable and in no event later than three business
days after receipt of the Preference Share Certificate(s) and at
its own expense, issue and deliver to the Holder thereof a new
Preference Share Certificate representing the number of
Preference Shares not converted. The person or persons entitled
to receive the Ordinary Shares issuable upon a conversion of
Preference Shares shall be treated for all purposes as the record
holder or holders of such Preference Shares on the applicable
conversion date.
(d) Anti-Dilution Provisions. The Conversion Price in
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effect at any time and the number and kind of securities issuable
upon conversion of the Preference Shares shall be subject to
adjustment from time to time upon the happening of certain events
as follows:
(i) Adjustment for Stock Splits and Combinations.
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If the Company at any time or from time to time on or after the
Original Issuance Date effects a subdivision of the outstanding
Ordinary Shares, the Conversion Price then in effect immediately
before that subdivision shall be proportionately decreased, and
conversely, if the Company at any time or from time to time on or
after the Original Issuance Date combines the outstanding
Ordinary Shares into a smaller number of shares, the Conversion
Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this Section
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4(d)(i) shall become effective at the close of business on the
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date the subdivision or combination becomes effective.
(ii) Adjustment for Certain Dividends and
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Distributions. If the Company at any time or from time to time on
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or after the Original Issuance Date makes or fixes a record date
for the determination of holders of Ordinary Shares entitled to
receive a dividend or other distribution payable in additional
Ordinary Shares, then and in each such event the Conversion Price
then in effect shall be decreased as of the time of such issuance
or, in the event such record date is fixed, as of the close of
business on such record date, by multiplying the Conversion Price
then in effect by a fraction (1) the numerator of which is the
total number of Ordinary Shares issued and outstanding
immediately prior to the time of such issuance or the close of
business on such record date and (2) the denominator of which
shall be the total number of Ordinary Shares issued and
outstanding immediately prior to the time of such issuance or the
close of business on such record date plus the number of Ordinary
Shares issuable in payment of such dividend or distribution;
provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully
made on the date fixed therefor, the Conversion Price shall be
recomputed accordingly as of the close of business on such record
date and thereafter the Conversion Price shall be adjusted
pursuant to this Section 4(d)(ii) as of the time of actual
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payment of such dividends or distributions.
(iii) Adjustments for Other Dividends and
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Distributions. In the event the Company at any time or from time
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to time on or after the Original Issuance Date makes or fixes a
record date for the determination of holders of Ordinary Shares
entitled to receive a dividend or other distribution payable in
securities of the Company other than Ordinary Shares, then and in
each such event provision shall be made so that the Holders of
Preference Shares shall receive upon conversion thereof, in
addition to the number of Ordinary Shares receivable thereupon,
the amount of securities of the Company which they would have
received had their Preference Shares been converted into Ordinary
Shares on the date of such event and had they thereafter, during
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the period from the date of such event to and including the
conversion date, retained such securities receivable by them as
aforesaid during such period, subject to all other adjustments
called for during such period under this Section 4(d) with
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respect to the rights of the Holders of Preference Shares.
(iv) Adjustment for Reclassification, Exchange and
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Substitution. In the event that at any time or from time to time
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on or after the Original Issuance Date, the Conversion Shares are
changed into the same or a different number of shares of any
class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than a subdivision or
combination of shares or stock dividend or a reorganization,
merger, consolidation or sale of assets, provided for elsewhere
in this Section 4(d)), then and in any such event each Holder of
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Preference Shares shall have the right thereafter to convert such
stock into the kind and amount of stock and other securities and
property receivable upon such recapitalization, reclassification
or other change, by holders of the maximum number of Ordinary
Shares into which such Preference Shares could have been
converted immediately prior to such recapitalization,
reclassification or change, all subject to further adjustment as
provided herein.
(v) Reorganizations, Mergers, Consolidations or
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Sales of Assets. If at any time or from time to time on or after
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the Original Issuance Date there is a capital reorganization of
the Ordinary Shares (other than a recapitalization, subdivision,
combination, reclassification or exchange of shares provided for
elsewhere in this Section 4(d)) or a merger or consolidation of
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the Company with or into another corporation, or the sale of all
or substantially all of the Company's properties and assets to
any other person, then, as a part of such reorganization, merger,
consolidation or sale, provision shall be made so that the
Holders of Preference Shares shall thereafter be entitled to
receive upon conversion of the Preference Shares the number of
shares of stock or other securities or property to which a holder
of the number of Ordinary Shares deliverable upon conversion
would have been entitled on such capital reorganization, merger,
consolidation, or sale. In any such case, appropriate adjustment
shall be made in the application of the provisions of this
Section 4(d) with respect to the rights of the Holders of
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Preference Shares after the reorganization, merger, consolidation
or sale to the end that the provisions of this Section 4(d)
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(including adjustment of the Conversion Price then in effect and
the number of shares purchasable upon conversion of the
Preference Shares) shall be applicable after that event and be as
nearly equivalent as is practicable.
(vi) Sale of Shares Below Conversion Price.
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A. If at any time or from time to time following
the Original Issuance Date, the Company issues or sells, or is
deemed by the express provisions of this Section 4(d)(vi) to have
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issued or sold, Additional Ordinary Shares (as hereinafter
defined), other than as a dividend or other distribution on any
class of stock and other than upon a subdivision or combination
of Ordinary Shares, in either case as provided in Section 4(d)(i)
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above, for a consideration, exercise or conversion price per
share less than the Conversion Price in effect immediately prior
to the issuance or sale of such Additional Ordinary Shares, or
without consideration, then forthwith upon such issuance or sale,
the Conversion Price shall (upon such issuance or sale) be
reduced to the lowest effective price at which the Additional
Ordinary Shares is issued, granted or sold.
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B. For the purpose of making any adjustment
required under Section 4(d)(vi), the consideration received by
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the Company for any issue or sale of securities shall (I) to the
extent it consists of cash be computed at the amount of cash
received by the Company, (II) to the extent it consists of
property other than cash, be computed at the fair value of that
property as determined in good faith by the Board of Directors of
the Company (the "Board"), (III) if Additional Ordinary Shares,
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Convertible Securities (as hereinafter defined) or rights or
options to purchase either Additional Ordinary Shares or
Convertible Securities are issued or sold together with other
stock or securities or other assets of the Company for a
consideration which covers both, be computed as the portion of
the consideration so received that may be reasonably determined
in good faith by the Board to be allocable to such Additional
Ordinary Shares, Convertible Securities or rights or options, and
(IV) be computed after reduction for all expenses payable by the
Company in connection with such issue or sale.
C. For the purpose of the adjustment required
under Section 4(d)(vi), if the Company issues or sells any
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rights, warrants or options for the purchase of, or stock or
other securities convertible into or exchangeable for Additional
Ordinary Shares (such convertible or exchangeable stock or
securities being hereinafter referred to as "Convertible
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Securities") and if the conversion price of such Additional
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Ordinary Shares is less than the Conversion Price then in effect,
then in each case the Company shall be deemed to have issued at
the time of the issuance of such rights, warrants, options or
Convertible Securities the maximum number of Additional Ordinary
Shares issuable upon exercise, conversion or exchange thereof and
to have received as consideration for the issuance of such shares
an amount equal to the total amount of the consideration, if any,
received by the Company for the issuance of such rights,
warrants, options or Convertible Securities, plus, in the case of
such rights, warrants or options, the minimum amounts of
consideration, if any, payable to the Company upon the exercise
of such rights, warrants or options, plus, in the case of
Convertible Securities, the minimum amounts of consideration, if
any, payable to the Company (other than by cancellation of
liabilities or obligations evidenced by such Convertible
Securities) upon the conversion or exchange thereof. No further
adjustment of the Conversion Price, adjusted upon the issuance of
such rights, warrants, options or Convertible Securities, shall
be made as a result of the actual issuance of Additional Ordinary
Shares on the exercise of any such rights, warrants or options or
the conversion or exchange of any such Convertible Securities. If
any such rights or options or the conversion or exchange
privilege represented by any such Convertible Securities shall
expire without having been exercised, the Conversion Price
adjusted upon the issuance of such rights, warrants, options or
Convertible Securities shall be readjusted to the Conversion
Price which would have been in effect had an adjustment been made
on the basis that the only Additional Ordinary Shares so issued
were the Additional Ordinary Shares, if any, actually issued or
sold on the exercise of such rights, warrants, or options or
rights of conversion or exchange of such Convertible Securities,
and such Additional Ordinary Shares, if any, were issued or sold
for the consideration actually received by the Company upon such
exercise, plus the consideration, if any, actually received by
the Company for the granting of all such rights, warrants, or
options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities
actually converted or exchanged, plus the consideration, if any,
actually received by the Company (other than by cancellation of
liabilities or obligations evidenced by such Convertible
Securities) on the conversion or exchange of such Convertible
Securities.
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D. For the purpose of the adjustment required
under Section 4(d)(vi), if the Company issues or sells, or is
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deemed by the express provisions of this Section 4(d) to have
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issued or sold, any rights or options for the purchase of
Convertible Securities and if the conversion price of the
Additional Ordinary Shares underlying such Convertible Securities
is less than the Conversion Price then in effect, then in each
such case the Company shall be deemed to have issued at the time
of the issuance of such rights or options the maximum number of
Additional Ordinary Shares issuable upon conversion or exchange
of the total amount of Convertible Securities covered by such
rights or options and to have received as consideration for the
issuance of such Additional Ordinary Shares an amount equal to
the amount of consideration, if any, received by the Company for
the issuance of such rights, warrants or options, plus the
minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights, warrants or options, plus the
minimum amount of consideration, if any, payable to the Company
(other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion or
exchange of such Convertible Securities. No further adjustment of
the Conversion Price, adjusted upon the issuance of such rights,
warrants or options, shall be made as a result of the actual
issuance of the Convertible Securities upon the exercise of such
rights, warrants or options or upon the actual issuance of
Additional Ordinary Shares upon the conversion or exchange of
such Convertible Securities. The provisions of paragraph (C)
above for the readjustment of the Conversion Price upon the
expiration of rights, warrants or options or the rights of
conversion or exchange of Convertible Securities shall apply
mutatis mutandis to the rights, warrants options and Convertible
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Securities referred to in this paragraph (D).
E. "Additional Ordinary Shares" shall mean all
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shares of Ordinary Shares issued by the Company on or after the
Original Issuance Date, whether or not subsequently reacquired or
retired by the Company, other than (I) the Conversion Shares,
(II) Ordinary Shares issuable upon exercise of warrants, options
and convertible securities outstanding as of the Original
Issuance Date (provided that the terms of such warrants, options
and convertible securities are not modified after the Original
Issuance Date to adjust the exercise price other than pursuant to
anti-dilution provisions), (III) Ordinary Shares issued to
employees of the Company or any subsidiary pursuant to stock
option plans or other arrangements approved by the Board or
pursuant to guidelines approved by the Board or upon exercise of
options or warrants granted to such parties pursuant to any such
plan or arrangement, (IV) Ordinary Shares issued in connection
with bona fide acquisitions, mergers, joint ventures and other
similar transactions approved by the Board, (V) Ordinary Shares
issued pursuant to any event for which adjustment is made to the
Conversion Price under Section 4(d) hereof or to the exercise
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price under the anti-dilution provisions of any warrants
outstanding as of the Original Issuance Date, (VI) Ordinary
Shares issued or issuable pursuant to the Acquisition Agreement
by and among the Company, Aegean Earth, S.A., Joseph Brandon
Clancy, Gus Polites, dated as of January __, 2008 (the
"Acquisition Agreement"), (VII) Ordinary Shares issued or
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issuable to banks, equipment lessors or other financial
institutions pursuant to a commercial leasing or debt financing
transaction approved by the Board, and (VIII) shares of Class A
Ordinary Shares issued to suppliers or third party service
providers in connection with the provision of goods or services
pursuant to transactions approved by the Board. (IV) Ordinary
Shares issued or issuable pursuant to the Memorandum of
Understanding by and among, Access America Fund, LP, Aegean
Earth, S.A., and a Shareholder of a Target Company (the
"Memorandum of Understanding"). "Fair Market Value" shall mean as
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of any date (i) if the Ordinary Shares are listed on a national
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securities exchange, the average of the closing prices as
reported for composite transactions during the twenty (20)
consecutive trading days preceding the trading day immediately
prior to such date or, if no sale occurred on a trading day, then
the mean between the closing bid and asked prices on such
exchange on such trading day; (ii) if the Ordinary Shares are not
so listed but are traded on the NASDAQ, the average of the
closing prices as reported on the NASDAQ during the twenty (20)
consecutive trading days preceding the trading day immediately
prior to such date or, if no sale occurred on a trading day, then
the mean between the highest bid and lowest asked prices as of
the close of business on such trading day, as reported on the
NASDAQ; or if not then included for quotation on the NASDAQ, the
average of the highest reported bid and lowest reported asked
prices as reported by the OTC Bulletin Board of the National
Quotation Bureau, as the case may be, or (iii) if the Ordinary
Shares are not then publicly traded, the fair market price, not
less than book value thereof, of the Ordinary Shares as
determined in good faith by the Board.
F. Other than a reduction pursuant to its
applicable anti-dilution provisions, any reduction in the
conversion price of any Convertible Security, whether outstanding
on the Original Issuance Date or thereafter, or the price of any
option, warrant or right to purchase Ordinary Shares or any
Convertible Security (whether such option, warrant or right is
outstanding on the Original Issuance Date or thereafter), to a
conversion price less than the current Conversion Price, shall be
deemed to be an issuance of such Convertible Security and all
such options, warrants or rights at such conversion price, and
the provisions of Sections 4(d)(vi)(C), (D) and (E) shall apply
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thereto mutatis mutandis.
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G. Any time an adjustment is made to the
Conversion Price pursuant to Section 4(e) of this Certificate, a
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corresponding proportionate change shall be made to the number of
shares of Ordinary Shares issuable upon conversion of each
Preference Share.
(vii) No Adjustments in Certain Circumstances.
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No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least
one ($0.01) cent in such price; provided, however, that any
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adjustments which by reason of this Section 4(d)(vii) are not
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required to be made shall be carried forward and taken into
account in any subsequent adjustment required to be made
hereunder. All calculations under this Section 4(d)(vii) shall be
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made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(viii) No Impairment. The Company will not, by
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amendment of its Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the
Company but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4 and in the
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taking of all such action as may be necessary or appropriate in
order to protect the conversion rights of the Holders of the
Preference Shares against impairment.
(vi) Certificate as to Adjustments. Upon the
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occurrence of each adjustment or readjustment of the Conversion
Price pursuant to this Section 4, the Company at its expense
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shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to each Holder of
Preference Shares a certificate setting forth such adjustment or
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readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the
written request at any time of any Holder of Preference Shares,
furnish or cause to be furnished to such Holder a like
certificate setting forth (i) such adjustments and readjustments,
(ii) Conversion Price at the time in effect, and (iii) the number
of Ordinary Shares and the amount, if any, of other property
which at the time would be received upon the conversion of the
Preference Shares.
(x) Status of Converted Stock. In the event any
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Preference Shares shall be converted pursuant to Section 4
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hereof, the shares so converted shall be canceled and shall not
be reissued as Preference Shares.
(5) Assumption and Provision Upon Organic Change. Prior to
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the consummation of any Organic Change (as defined below), the
Company shall make appropriate provision to ensure that each of
the Holders will thereafter have the right to acquire and receive
in lieu of or in addition to (as the case may be) the Ordinary
Shares immediately theretofore acquirable and receivable upon the
conversion of such Holder's Preference Shares such shares of
stock, securities or assets that would have been issued or
payable in such Organic Change with respect to or in exchange for
the number of Ordinary Shares which would have been acquirable
and receivable upon the conversion of such Holder's Preference
Shares into Ordinary Shares immediately prior to such Organic
Change. The following shall constitute an "Organic Change:" any
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recapitalization, reorganization, reclassification, consolidation
or merger, sale of all or substantially all of the Company's
assets to another person or other transaction which is effected
in such a way that holders of Ordinary Shares are entitled to
receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Ordinary
Shares.
(6) Liquidation, Dissolution, Winding-Up.
(a) Liquidation Preference. Holders shall be
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entitled to receive out of the assets of the Company legally
available for distribution therefrom (the "Liquidation Funds"),
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before any amount shall be paid to the holders of any of the
capital stock of the Company of any class junior in rank to the
Preference Shares in respect of the preferences as to the
distributions and payments on the liquidation, dissolution and
winding up of the Company, an amount per Preference Share equal
to 100% of the sum of (i) of the Stated Value, plus (ii) all
dividends, if any, which have accrued or are payable under
Section 8 hereof, but have not been paid and received by the
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Holders, up to and including the date full payment is tendered to
the Holders with respect to such Liquidation (collectively, the
"Liquidation Preference").
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(b) Liquidation Distribution. If, upon any
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Liquidation, the Liquidation Funds are insufficient to pay, issue
or deliver the full amount due to the Holders and holders of
shares of other classes or series of preference shares of the
Company that are expressly provided for as of equal rank with the
Preference Shares as to payments of Liquidation Funds (the "Pari
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Passu Shares"), then each holder of Preference Shares and Pari
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Passu Shares shall receive a percentage of the Liquidation Funds
equal to the full amount of Liquidation Funds payable to such
holder as a liquidation preference, in accordance with their
respective certificates of designation of preferences rights and
limitations, as a percentage of the full amount of Liquidation
Funds payable to all holders of Preference Shares and Pari Passu
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Shares. No Holder of Preference Shares shall be entitled to
receive any amounts with respect thereto upon any Liquidation
other than the amounts provided for herein; provided that a
Holder of Preference Shares shall be entitled to all amounts
previously accrued with respect to amounts owed hereunder. The
form of consideration in which the Liquidation Preference is to
be paid to the Holders of the Preference Shares as provided in
this Section 6 shall be the form of consideration received by the
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Company or the other holders of the Company's capital stock, as
the case may be.
(c) "Liquidation" means (i) any liquidation,
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dissolution or winding up of the Company, whether voluntary or
involuntary, and/or (ii) any filing for bankruptcy pursuant to
applicable federal and/or state laws.
(7) Preferred Rank. All Ordinary Shares shall be of junior
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rank to all Preference Shares in all respects as to the
preferences as to distributions and payments upon any
Liquidation. The rights of the Ordinary Shares shall be subject
to the preferences and relative rights of the Preference Shares.
(8) Dividends; Participation.
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(a) Dividends. Each Preference Share shall accrue
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dividends at the rate of six (6%) percent ($0.18 per share) per
annum of the Stated Value, which dividends shall be paid when,
as, and if declared by the Board of Directors out of funds
legally available thereof, payable upon the Redemption Date (the
"Dividend Payment Date"). Dividends payable will be prorated
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from the Original Issuance Date based upon the number of days the
Preference Shares are outstanding in the applicable fiscal year.
Dividends on the Preference Shares shall be cumulative. No
dividends or other distributions may be paid or otherwise made
with respect to the Ordinary Shares and no Ordinary Shares may be
repurchased by the Company during any fiscal year of the Company
until dividends equal to the amount specified above (the "Annual
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Dividend") on the Preference Shares have been declared, paid or
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set apart during that fiscal year.
(b) Optional Dividends. In addition to the dividends
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described in Section 8(a) above, the Company reserves the right
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to declare and pay optional dividends to the Holders of
Preference Shares in such amounts, form (securities and/or cash)
and at such time as determined by the Board.
(9) Limited Special Voting Rights.
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(a) The affirmative vote of the Holders owning not
less than a majority of the then issued and outstanding
Preference Shares, at a meeting duly called for such purpose, or
by the written consent without a meeting of the Holders of not
less than a majority of the then outstanding Preference Shares,
shall be required for any amendment to any of the preferences,
rights and limitations of the Preference Shares and/or the
Company's Articles of Association which would directly and/or
indirectly amend, alter, change, repeal or otherwise adversely
affect any of the powers, designations, preferences and rights of
the Preference Shares, including to increase the amount of
authorized capital stock of any such class.
(b) For so long as Preference Shares remain
outstanding, the Company shall not, without the express written
consent of Holders owning no less than a majority of the
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aggregate Stated Value of the then issued and outstanding
Preference Shares issue any preference shares senior to or pari
passu with the Preference Shares.
(10) Lost or Stolen Certificates. Upon receipt by the
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Company of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of any Preference Shares
Certificate(s) representing the Preference Shares, and, in the
case of loss, theft or destruction, of any indemnification
undertaking by the Holder to the Company in customary form and,
in the case of mutilation, upon surrender and cancellation of the
Preference Shares Certificate(s), the Company shall execute and
deliver new Preference Shares Certificate(s) of like tenor and
date.
(11) Notices. Whenever notice is required to be given under
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any of the preferences, rights and limitations of the Preference
Shares, unless otherwise provided herein, such notice shall be
given in writing and will be mailed by certified mail, return
receipt requested, or delivered against receipt to the party to
whom it is to be given (a) if to the Company, at the Company's
executive offices or (b) if to a Holder, at the address set forth
on Company's books and records.
Remainder of Page Intentionally Left Blank
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The undersigned declare under penalty of perjury that the
matters set forth in the foregoing Certificate are true and
correct of their own knowledge.
Executed on January 15, 2008.
/s/ Joseph Rozelle
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Joseph Rozelle
Chairman and President
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