Exhibit: 4.1
Bancorp International Group, Inc.
Certificate of Designation
Preferences and Rights of Preferred Stock
Bancorp International Group, Inc., a corporation organized and existing
under the General Corporation Law of the State of Nevada (the "Corporation"),
does, by its president and its secretary and under its corporate seal, hereby
certify as follows:
FIRST: That by the certificate of incorporation duly filed in the State of
Nevada, as currently amended, the Corporation is "authorized to issue 15,000,000
shares of preferred stock, $.001 par value, the attributes of which are to be
determined by resolution of the Corporation's Board of Directors from time to
time, prior to issuance, in conformity with the requirements of Section 151 of
the Nevada General Corporation Law."
SECOND: That pursuant to the authority vested in the Board of Directors by
the certificate of incorporation, the board of directors at a meeting duly
convened and held on the 19th day of August 2005, adopted the following
resolution:
RESOLVED, that the Board of Directors hereby creates and designates the
series of Preferred Stock, $.001 par value, to be known as Series A Convertible
Preferred Stock of the Corporation, which is the only Convertible Preferred,
authorized the issuance thereof, fixes the designation and amount thereof and
the preferences and relative, participating, optional and other special rights
of such shares, and the qualifications, limitations or restrictions thereof as
follows:
1.1 Designation and Amount.
The shares of the Preferred Stock shall be designated "Series A
Convertible Preferred Stock (hereinafter sometimes called "Preferred
Stock"), and the number of shares which may be issued shall be 15,000,000.
1.2 Dividends.
(A) The holders of shares of the Preferred Stock shall be entitled to
receive, out of the assets of the Corporation legally available
therefor, and as and when declared by the Board of Directors,
dividends of every kind declared and paid to holders of the
Corporation's Common Stock, at a rate per share equal to the Set
Conversion Rate as defined below.
(B) Each such dividend shall be paid to the holders of record of
shares of the Preferred Stock as they appear on the stock
register of the Corporation on the last day of the month next
preceding the payment date thereof.
1.3 Conversion.
The holders of shares of the Preferred Stock shall have the right, at
their option, to convert such shares into shares of Common Stock of the
Corporation, subject to the following terms and conditions:
(A) The shares of Preferred Stock may be converted into fully paid
and non-assessable shares (calculated as to each conversion to
the nearest 1/100th of a share) of Common Stock.
(B) The shares of Preferred Stock shall be convertible at the office
of the transfer agent for the Preferred Stock (the "Transfer
Agent"), and at such other place or places, if any, as the Board
of Directors of the Corporation may designate, into fully paid
and non-assessable shares (calculated as to each conversion to
the nearest 1/100th of a share) of Common Stock.
(C) The number of shares of Common Stock issuable upon conversion of
each share of the Preferred Stock shall be equal to one hundred
(100) shares of Common Stock (the "Set Conversion Rate"), subject
to adjustment from time to time in certain instances as
hereinafter provided.
(D) No fractional shares of Common Stock will be issued, rather, one
fractional share per holder will be rounded up to a whole share,
provided that such rounding-up is in compliance with Section
1.3(A) above.
(E) Before any holder of shares of the Preferred Stock shall be
entitled to convert the same into Common Stock, he shall
surrender the certificate or certificates therefor, duly endorsed
and dated to the Corporation with a medallion signature
guarantee, at the office of the Transfer Agent or at such other
place or places, if any, as the Board of Directors of the
Corporation has designated and shall give written notice to the
Corporation at said office or place that he elects to convey the
same.
(F) The Corporation will, as soon as practicable thereafter, issue
and deliver at said office or place to such holder of shares of
the Preferred Stock certificates for the number of full shares of
Common Stock to which he, she or it shall be entitled as
aforesaid.
(G) Shares of the Preferred Stock shall be deemed to have been
converted as of the close of business on the date of the
medallion signature guarantee on the certificate surrendered for
conversion as provided above so long as it is received by the
Corporation or the Corporation's transfer agent no later than the
tenth business day thereafter, and the person or persons entitled
to receive the Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such
Common Stock as of the close of business on such date.
1.4 Adjustments
(A) The Set Conversion Rate in effect at any time shall be subject to
adjustment as follows:
(1) The Set Conversion Rate in effect at the time of the record
or effective date for the following listed events shall be
proportionately adjusted so that the holder of any share of
the Preferred Stock surrendered for conversion after such
time shall be entitled to receive the kind and amount of
shares which he would have owned or have been entitled to
receive had such share of the Preferred Stock been converted
immediately prior to such time:
(a) If the Corporation declares a dividend on its Common
Stock in shares of its capital stock;
(b) If the Corporation subdivides its outstanding shares of
Common Stock;
(c) If the Corporation combines its outstanding shares of
Common Stock into a smaller number of shares; or
(d) If the Corporation issues by reclassification of its
Common Stock (including any such reclassification in
connection with a consolidation or merger in which the
Corporation is the continuing corporation) any shares
of its capital stock.
(2) Such adjustment shall be made successively whenever any
event listed above shall occur.
(3) In case the Corporation shall distribute to all holders of
its Common Stock (including any such distribution made in
connection with a consolidation or merger in which the
Corporation is the continuing corporation) evidences of its
indebtedness or assets (excluding dividends or other
distributions paid out of earned surplus) or subscription
rights or warrants (excluding those referred to in Section
1.4(A)(3) above), the Set Conversion Rate shall be adjusted
so that the same shall equal the price determined by
multiplying the Set Conversion Rate in effect immediately
prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be
the Current Market Price per share of the Common Stock on
the date fixed for such determination less the then fair
market value (as determined by the Board of Directors of the
Corporation, whose determination shall be conclusive and
described in a Board Resolution of the Corporation filed
with the Transfer Agent) of the portion of the assets or
evidences of indebtedness so distributed applicable to one
share of Common Stock and the denominator shall be such
Current Market Price per share of the Common Stock, such
adjustment to become effective immediately prior to the
opening of business of the day following the date fixed for
the determination of stockholders entitled to receive such
distribution.
(4) All calculations under this Section 1.4 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case
may be.
(5) In case of any consolidation or merger of the Corporation
with or into any other corporation (other than a
consolidation or merger in which the Corporation is the
continuing corporation), or in case of any sale or transfer
of all or substantially all of the assets of the
Corporation, the holder of each share of the Preferred Stock
shall after such consolidation, merger, sale or transfer
have the right to convert such share of the Preferred Stock
into the kind and amount of shares of stock and other
securities and property which such holder would have been
entitled to receive upon such consolidation, merger, sale or
transfer if he had held the Common Stock issuable upon the
conversion of such share of the Preferred Stock immediately
prior to such consolidation, merger, sale or transfer.
(B) In the event that at any time, as a result of an adjustment made
pursuant to this Section 1.4, the holder of any share of the
Preferred Stock surrendered for conversion shall become entitled
to receive any securities other than shares of Common Stock,
thereafter the amount of such other securities so receivable upon
conversion of any share of the Preferred Stock shall be subject
to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect
to the Common Stock set forth in the foregoing subsections of
this Sections 1.3 and the provisions of this Section 1.3 with
respect to the Common Stock shall apply on like terms to any such
other securities.
(C) No adjustment in the Set Conversion Rate shall be required unless
such adjustment would require a change of at least 1% in such
price; provided, however, that any adjustments which by reason of
this Section 1.4(C) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
(D) Whenever the Set Conversion Rate is adjustable as herein
provided:
(1) The Corporation shall promptly file with the Transfer Agent
for the Preferred Stock a certificate of the treasurer of
the Corporation setting forth the adjusted Set Conversion
Rate and showing in reasonably detail the facts upon which
such adjustment is based, including a statement of the
consideration received or to be received by the Corporation
for any shares of Common Stock issued or deemed to have been
issued; and
(2) A notice stating that the Set Conversion Rate has been
adjusted and setting forth the adjusted Set Conversion Rate
shall forthwith be required, and as soon as practicable
after it is required, such additional notice shall be deemed
to be required pursuant to this Section 1.4(D)(2) as of the
opening of business on the tenth day after such mailing and
shall set forth the Set Conversion Rate as adjusted at such
opening of business, and upon the mailing of such additional
notice no other notice need be given of any adjustment in
the Set Conversion Rate occurring at or prior to such
opening of business and after the time that the next
preceding notice given by mailing became required.
(E) In each of the following instances the Corporation shall cause to
be filed with the Transfer Agent and shall cause to be mailed,
first class postage prepaid, to the holders of record of the
outstanding shares of Preferred Stock, at least 10 days prior to
the applicable record date hereinafter specified, a notice
stating the date on which a record is to be taken for the purpose
of such distribution or rights, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record
to be entitled to such distribution or rights are to be
determined, or the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation
or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall
be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation
or winding up:
(1) If the Corporation shall authorize the distribution to all
holders of its Common Stock of evidences of its indebtedness
or assets (other than dividends or other distributions paid
out of earned surplus); or
(2) If the Corporation shall authorize the granting to the
holders of its Common Stock of rights to subscribe for or
purchase any shares of capital stock of any class or of any
other rights; or
(3) In the event of any reclassification of the Common Stock
(other than a subdivision or combination of its outstanding
shares of Common Stock), or of any consolidation or merger
to which the Corporation is a party and for which approval
of any stockholders of the Corporation is required, or of
the sale or transfer of all or substantially all of the
assets of the Corporation; or
(4) In the event of any reclassification of the voluntary or
involuntary dissolution, liquidation or winding up of the
Corporation.
(F) Except as set forth herein, the holders of the Preferred Stock as
provided herein are neither greater than nor less than, but
entirely consistent with, the rights of the holders of Common
Stock.
1.5 Required Corporate Actions
(A) (1) Subject to the provisions of Section 1.5(A)(2) below, the
Corporation will at all times reserve, keep available and be
prepared to issue, free from any preemptive rights, out of
its authorized but unissued Common Stock, solely for the
purpose of effecting conversion of the Preferred Stock, the
full number of shares of Common Stock then issuable upon the
conversion of all outstanding Preferred Stock.
(2) The Corporation shall from time to time, in accordance with
the laws of the State of Nevada, take such actions as it
necessary to amend its Certificate of Incorporation to
increase the authorized amount of its Common Stock if at any
time the Authorized amount of its Common Stock remaining
unissued shall be not sufficient to permit the conversion of
all Preferred Stock.
(3) The Corporation shall, if any shares of Common Stock
required to be reserved for issuance upon conversion of
Preferred Stock, require registration with or approval of
any governmental authority under any Federal or state law
before such shares may be issued upon such conversion,
endeavor to cause such shares to be so registered or
approved as expeditiously as possible.
(B) (1) The Corporation will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of
Common Stock on conversion of shares of the Preferred Stock
pursuant hereto.
(2) The Corporation shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved
in the issue or transfer and delivery of shares of Common
Stock in a name other than that in which the shares of the
Preferred Stock so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue has paid to the Corporation the amount
of any such tax or has established to the satisfaction of
the Corporation that such tax has been paid.
(C) Whenever reference is made in Sections 1.3, 1.4 or 1.5 to the
issuance or sale of shares of Common Stock, the term "Common
Stock" shall include any stock of any class of the Corporation
other than preferred stock of any class with a fixed (absolutely
or by reference to an adjustment formula) limit on dividends and
a fixed amount payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation.
1.6 Liquidation rights.
In the event of any liquidation or dissolution or winding up of the
Corporation, voluntary or involuntary, the holders of the Preferred Stock shall
be entitled to receive liquidation benefits identical to those received by
holders of any class of the Corporation's common stock, provided that each share
of Preferred Stock shall be treated as if equal to the number of shares of
Common Stock said shares are convertible into whether or not converted.
1.7 Voting Rights.
The Preferred Stock shall have the voting rights equal to the number of
shares of Common Stock said shares are convertible into whether or not
converted.
THIRD: That said resolution of the Corporation's board of directors, and
the creation and authorization of issuance thereby of said series of 15,000,000
shares of Preferred Convertible Stock and determination thereby of the dividend
rate, liquidation preferences, voting rights and provisions in respect to
conversion or exchange of said stock, were duly made by the Board of Directors
pursuant to authority as aforesaid and in accordance with Sections 103, 151 and
102(4) of the Nevada General Corporation Law.
IN WITNESS WHEREOF, the Corporation has made under its corporate seal and
the hands of its president and secretary, respectively, of said corporation, the
foregoing certificate, and the president and secretary have hereunto set their
hands and caused the corporate seal of the said corporation to be hereunto
affixed this 19th day of August, 2005.
Bancorp International Group, Inc.
By: /S/THOMAS P. MEGAS
Thomas P. Megas, President
Chairman of the Board
Attest: /S/MARTIN DUFFY
Martin Duffy
Secretary