EXHIBIT NO. 4.1
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CERTIFICATE OF DESIGNATION
CREATING SERIES F PREFERRED
STOCK OF
OCG TECHNOLOGY, INC.
(Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware)
OCG Technology, Inc. (hereinafter called the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
That, in accordance with the provisions of Article FOURTH of the
Certificate of Incorporation of the Corporation, the following resolution was
duly adopted by the Board of Directors of the Corporation:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation by Article FOURTH of the Corporation's Certificate
of Incorporation, as amended, a series of Preferred Stock of the Corporation be,
and it hereby is, created out of the authorized but unissued shares of the
capital stock of the Corporation, such series to be designated Series F
Preferred Stock, to consist of a maximum of 400,000 shares, par value $.10 per
share, of which the preferences and other rights, and the qualifications,
limitations or restrictions thereof, shall be as follows (in addition to those
fixed by Article FOURTH of the Corporation's Certificate of Incorporation):
Certain Definitions. Unless the context otherwise requires, the terms defined in
this Section 1 shall have, for all purposes of this resolution, the meanings
herein specified.
Common Stock. The term "Common Stock" shall mean all shares of Common Stock of
the Corporation now or hereafter authorized and any other stock of the
Corporation howsoever designated, whether now or hereafter authorized, that has
the right (subject always to prior rights of the Preferred Stock) to participate
in the distribution of the assets and earnings of the Corporation without limit
as to amount or percentage.
Series F Preferred Stock. The term "Series F Preferred Stock" shall mean the
class of Preferred Stock, par value $.10 per share, authorized on the filing
date of this certificate with the Secretary of State of the State of Delaware by
the resolution set forth herein.
Junior Stock. The term "Junior Stock" shall mean, for purposes of Section 2
below, Common Stock and any other class or series of stock of the Corporation,
whether now or hereafter authorized, which by the terms of the Certificate of
Incorporation or of the instrument of the Board of Directors initially
establishing such series pursuant to authority granted in the Certificate of
Incorporation shall be subordinated to the Series F Preferred Stock in respect
of the right to receive dividends, and, for purposes of Section 3 below, such
term shall mean Common Stock and any other class or series of stock of the
Corporation, whether now or hereafter authorized, that by the terms of the
Certificate of Incorporation or of the instrument of the Board of Directors
initially establishing such series pursuant to authority granted in the
Certificate of Incorporation shall be subordinated to the Series F Preferred
Stock in respect of the right to receive any assets upon liquidation,
dissolution or winding up of the affairs of the Corporation.
Parity Stock. The term "Parity Stock" shall mean, for purposes of Section 2
below, any class or series of stock of the Corporation, whether now or hereafter
authorized, which by the terms of the Certificate of Incorporation or of the
instrument of the Board of Directors initially establishing such series pursuant
to authority granted in the Certificate of Incorporation shall be entitled to
receive payment of dividends pari passu with the Series F Preferred Stock, and,
for purposes of Section 3 below, such term shall mean any class or series of
stock of the Corporation, whether now or hereafter authorized, which by the
terms of the Certificate of Incorporation or of the instrument of the Board of
Directors initially establishing such series pursuant to authority granted in
the Certificate of Incorporation shall be entitled to receive assets upon
liquidation, dissolution or winding up of the affairs of the Corporation pari
passu with the Series F Preferred Stock; provided, however, that nothing herein
contained shall preclude the Board of Directors from fixing dividend rates and
liquidating preferences for any series of Parity Stock which are different in
amount from the dividend rates and liquidating preference applicable to the
Series F Preferred Stock.
Senior Stock. The term "Senior Stock" shall mean, for purposes of Section 2
below, any class or series of stock of the Corporation, whether now or hereafter
authorized, which by the terms of the Certificate of Incorporation or of the
instrument of the Board of Directors initially establishing such series pursuant
to authority granted in the Certificate of Incorporation shall rank senior to
the Series F Preferred Stock in respect of the right to receive dividends, and,
for purposes of Section 3 below, such term shall mean any class or series of
stock of the Corporation, whether now or hereafter authorized, which by the
terms of the Certificate of Incorporation or of the instrument of the Board of
Directors initially establishing such series pursuant to authority granted in
the Certificate of Incorporation shall rank senior to the Series F Preferred
Stock in respect of the right to participate in any distribution upon
liquidation, dissolution or winding up of the affairs of the Corporation.
Dividends.
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General. Subject to the preferences and other rights of any Senior Stock, and
provided that dividends are simultaneously paid or declared on all Parity Stock,
the holders of the Series F Preferred Stock shall be entitled to receive out of
any funds or other property legally available therefor, when and as declared by
the Board of Directors, dividends in an amount per share equal to ten thousand
(10,000) times of the amount per share of dividends distributable to the holders
of the Common Stock and to the holders of all Parity Stock, which dividends
shall be payable on such date as may be established by the Board of Directors of
the Corporation.
Preferential Status of Dividends on Series F Preferred Stock. In no event, so
long as any shares of the Series F Preferred Stock shall be outstanding, shall
any dividend whatsoever, whether in cash, property or otherwise, be declared or
paid, nor shall any distribution be made, on any Junior Stock, nor shall any
Junior Stock be purchased or redeemed by the Corporation, nor shall any moneys
be paid or made available for any sinking fund for the purchase or redemption of
any Junior Stock, unless all unpaid accumulated and accrued entitlements on the
outstanding shares of Series F Preferred Stock, to and including the date fixed
for such declaration, payment or distribution with respect to any Junior Stock,
shall have been either paid or declared and a sum sufficient for the payment
thereof set apart.
Distributions upon Liquidation, Dissolution or Winding Up.
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In the event of any voluntary or involuntary liquidation, dissolution
or other winding up of the affairs of the Corporation, before any distribution
or payment shall be made to the holders of Junior Stock, the holders of the
Series F Preferred Stock shall be entitled to be paid all declared but unpaid
dividends thereon, if any, to and including the date fixed for such distribution
or payment in cash or in property (taken at its fair value as determined by the
Board of Directors of the Corporation) or both, at the election of the Board of
Directors. If such payment shall have been made in full to the holders of the
Series F Preferred Stock, and if payment shall have been made in full to the
holders of any Parity Stock of all amounts to which such holders shall be
entitled, the holders of the Series F Preferred Stock shall be entitled to
receive out of the remaining assets and funds of the Corporation shall be
distributed an amount per share equal to ten thousand (10,000) times of the
amount per share to be distributed to the holders of the Common Stock and to the
holders of all Parity Stock and Junior Stock. If, upon any such liquidation,
dissolution or other winding up of the affairs of the Corporation, the net
assets of the Corporation distributable among the holders of all outstanding
shares of the Series F Preferred Stock and of any Parity Stock shall be
insufficient to permit the payment in full to such holders of the preferential
amounts to which they are entitled, then the entire net assets of the
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Corporation remaining after the distribution to holders of any Senior Stock of
the full amounts to which they may be entitled, shall be distributed among the
holders of the Series F Preferred Stock and of any Parity Stock rateably in
proportion to the full amounts to which they would otherwise be respectively
entitled. Neither the consolidation or merger of the Corporation into or with
another corporation or corporations, nor the sale of all or substantially all of
the Corporation's assets as or substantially as an entirety, nor the
distribution to the stockholders of the Corporation of all or substantially all
of the consideration received for such sale (provided that the Board of
Directors, whose determination, absent bad faith or manifest error, shall be
final, binding and conclusive, shall in good faith determine that such
distribution is a dividend and not a distribution or payment in connection with
the liquidation, dissolution or other winding up of the affairs of the
Corporation), shall be deemed a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this Section 3.
Conversion.
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(a) Authorization of Conversion Shares. As soon as is
practicable following the filing of this Certificate of Designation,
the Corporation shall take such actions as are necessary to increase
the number of authorized shares of the Corporation's Common Stock to an
amount sufficient to permit the conversion, in full, of any and all
shares of Series F Preferred Stock outstanding, from time to time, as
provided below in this Section 4. Any issued shares of Series F
Preferred Stock shall first become convertible, as provided below, upon
the effectiveness of the increase in the authorized shares of the
Corporation's Common Stock as aforesaid.
Optional Conversion. ^Subject to paragraph (a), above, any or all shares of the
Series F Preferred Stock shall be convertible at any time, and from time to
time, prior to December 31, 2005 at the option of the holder thereof, into fully
paid and non-assessable shares of Common Stock of the Corporation upon surrender
to the Corporation or its designee of the certificate or certificates
representing the share or shares to be so converted, together with a written
notice of election to convert, and, upon receipt by the Corporation or its
designee of such notice and of such surrendered certificate or certificates with
any appropriate endorsement thereon (as may be prescribed by the Board of
Directors), any such holder shall be entitled to receive a certificate or
certificates representing the shares of Common Stock into which such shares of
Series F Preferred Stock are convertible, and any such holder shall be deemed to
be a holder of record of such shares of Common Stock as of the time of such
receipt by the Corporation its designee.
Mandatory Conversion. Subject to paragraph (a), above, upon the earlier to occur
of (i) the affirmative vote or written consent of the holders of a majority of
the outstanding shares of Series F Stock or (ii) December 31, 2005, all shares
of Series F Stock then outstanding shall be automatically converted, in full,
into fully paid and non-assessable shares of Common Stock of the Corporation and
shall cease to be outstanding, and each certificate theretofore representing
shares of Series F Preferred Stock shall thereafter represent only the right to
receive upon surrender to the Corporation or its designee of such certificates
one or more certificates representing the shares of Common Stock of the
Corporation into which the shares of Series F Preferred Stock represented
thereby shall have been converted hereunder.
Basis for Conversion. The conversion rate under this Section 4 shall be ten
thousand (10,000) shares of Common Stock for each share of Series F Preferred
Stock which is converted. In connection with effecting any transfer of any
Series F Preferred Stock to the Corporation for cancellation upon conversion of
the same into Common Stock the Corporation may, but shall not be obliged to,
issue a certificate or certificates for fractions of Common Stock in lieu
thereof, the Corporation may pay cash equal to the fair value of such fraction
of Common Stock as determined by the Board of Directors of the Corporation.
Except as may otherwise be provided by law, shares of Series F Preferred Stock
which have been converted shall be retired and restored to the status of
authorized but unissued shares of Preferred Stock of the Corporation.
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Authorized Common Stock; Reservation of Common Stock for Issuance Upon
Conversion. Subject to the Corporation amending its Certificate of Incorporation
to increase the number of authorized shares of Common Stock to an amount
sufficient to permit conversion of all issued and outstanding shares of Series F
Preferred Stock^, the Corporation shall ^reserve such number of authorized
shares of Common Stock as is necessary to permit the conversion, in full, of
such outstanding shares of Series F Preferred Stock as provided herein, ^which
reserved shares shall be issued only in satisfaction of the conversion rights
and privileges of the outstanding shares of Series F Preferred Stock, as
aforesaid.
Reorganization, Reclassification, Consolidation, Merger and Sale of Assets. If
any capital reorganization or reclassification of the capital stock of the
Corporation, or any consolidation or merger of the Corporation with another
corporation, or the sale of all or substantially all of its assets to another
corporation, shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for shares of Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby each holder of Series F Preferred Stock
shall thereafter have the right to receive, upon the basis and upon the terms
and conditions specified in this paragraph and in lieu of Common Stock of the
Corporation immediately theretofore receivable upon the conversion of a share of
Series F Preferred Stock, such share or shares of the stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of Common Stock equal to the number of shares of such
stock immediately theretofore receivable upon conversion of a share of Series F
Preferred Stock, had such reorganization, reclassification, consolidation,
merger or sale not taken place, and in any such case appropriate provision shall
be made with respect to the rights and interest of the holders of shares of
Series F Preferred Stock to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the Conversion Rate and of the
number of shares receivable upon the conversion of Series F Preferred Stock)
shall thereafter be applicable, as nearly as may be, in relation to any shares
of stock, securities or assets thereafter deliverable upon the conversion of a
share of Series F Preferred Stock. The Corporation will not effect any such
consolidation, merger or sale unless prior to the consummation thereof the
successor corporation resulting from such consolidation or merger (if other than
the Corporation), or the corporation purchasing such assets, shall, by written
instrument in form and substance satisfactory to holders of a majority of the
outstanding Series F Preferred Stock (who shall not unreasonably withhold or
delay their approval) mailed or delivered to the addresses of such holders
appearing on the books of the Corporation, assume the obligation to deliver to
such holders such share or shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holders may be entitled to
receive. Upon each such adjustment of the basis for conversion, the Corporation
shall give written notice thereof by first class mail, postage prepaid,
addressed to the holders of shares of Series F Preferred Stock at the addresses
of such holders as shown on the books of the Corporation. The notice shall state
the conversion rate resulting from such adjustment and set forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based.
Notice. If at any time:
(d) the Corporation shall declare any cash dividend upon
its Common Stock or Parity Stock;
(e) the Corporation shall declare any dividend upon its
Common Stock or Parity Stock payable in stock or authorize any other
distribution (other than regular cash dividends) to the holders of its
Common Stock or Parity Stock;
(e) the Corporation shall offer for subscription pro rata
to the holders of its Common Stock or Parity Stock any additional
shares of stock or any class or other rights;
(g) there shall be any capital reorganization, or a
reclassification of the capital stock of the Corporation or a
consolidation or merger of the Corporation with, or sale of all or
substantially all of its assets to, another corporation; or
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(h) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Corporation,
then, in any one or more of said cases, the Corporation shall give, by first
class mail, postage prepaid, addressed to the holders of Series F Preferred
Stock, at the addresses of such holders as shown on the books of the
Corporation, (A) at least 20 days' prior written notice of the date on which the
books of the Corporation shall close and a record date shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, and (B) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, at least 20 days' prior written notice of the date
when the same shall take place. Each such notice made in accordance with the
foregoing clause (A) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Shares shall be entitled thereto, and such notice made in accordance with the
foregoing clause (B) shall also specify the date on which the holders of Common
Shares shall be entitled to exchange their Common Shares for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, as the case may be. The
failure to give any such notice shall not invalidate any such corporate action.
Further Adjustments to Basis for Conversion. If any stock split, reverse stock
split, combination of shares or other event occurs as to which, in the opinion
of the Board of Directors, the other provisions of this Section 4 are not
strictly applicable or, if strictly applicable, would not fairly protect the
conversion rights of the holders of Series F Preferred Stock in accordance with
the essential intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to protect such
conversion rights as aforesaid, but in no event shall any such adjustment have
the effect of reducing the basis for conversion as otherwise determined except
in the event of a reverse stock split or combination of shares.
Dissolution, Liquidation and Winding Up. In the event of a judicial or
non-judicial dissolution, liquidation or winding-up of the Corporation, the
conversion rights and privileges of the holders of Series F Preferred Stock
shall terminate on a date, as fixed by the Board of Directors of the
Corporation, not more than 60 days and not less than 10 days before the date of
such dissolution.
Voting Rights. The holders of shares of the Series F Preferred Stock shall have
ten thousand (10,000) votes per share held and shall have the right to vote for
any purpose as the holders of the Corporation's Common Stock. Notwithstanding
the foregoing, unless the vote of the holders of a greater number of shares of
the Series F Preferred Stock shall then be required by law, the consent of the
holders of at least a majority of all of the shares of the Series F Preferred
Stock at the time outstanding, given in person or by proxy by a vote at a
meeting called for the purpose or by written consent pursuant to Section 228 of
the Delaware Business Corporation Law, at or pursuant to which the holders of
shares of the Series F Preferred Stock shall vote or act together as a separate
class, shall be necessary for authorizing, effecting or validating (A) the
creation, authorization or issue of any shares of any class of Senior Stock or
Parity Stock, or (B) the reclassification of any authorized stock of the
Corporation into Senior Stock or Parity Stock, or (C) the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any Senior Stock or Parity Stock.
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Exclusion of Other Rights.
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Except as may otherwise be required by law, the shares of Series F
Preferred Stock shall not have any preferences or relative, participating,
optional or other special rights other than those specifically set forth in this
resolution and in the Certificate of Incorporation of the Corporation.
Headings of Sections and Paragraphs.
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The headings of the various sections and paragraphs hereof are for
convenience of reference only and shall not affect the interpretation of any of
the provisions hereof.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by its President and Secretary, respectively, as of the ____ day of
_______, 2005.
____________________________ ______________________________
_________________, Secretary Edward C. Levine, President
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