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| 8-K - COLOMBIA ENERGY RESOURCES, INC. | v211120_8-k.htm |
CERTIFICATE
OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES
A CONVERTIBLE PREFERRED STOCK
OF
COLOMBIA
CLEAN POWER & FUELS, INC.
Pursuant
to Section 78.1955 of the
Nevada
Revised Statutes
The
undersigned, Edward P. Mooney, hereby certifies that:
I. He
is the duly elected and acting President and Chief Executive Officer of Colombia
Clean Power & Fuels, Inc., a Nevada corporation (the “Corporation”).
II. The
Articles of Incorporation of the Corporation authorize 5,000,000 shares of
preferred stock, $0.001 par value per share (the “Preferred
Stock”). No shares of the authorized Preferred Stock have been
issued.
III. The
following is a true and correct copy of resolutions duly adopted by the Board of
Directors of the Corporation (the “Board of Directors”)
on February 11, 2011, pursuant to the Articles of Incorporation (as defined
below) and in accordance with the provisions of the Nevada Revised
Statutes.
RESOLUTIONS
WHEREAS,
the Board of Directors is authorized by Article IV(b) of the Corporation’s
Articles of Incorporation, as amended on April 2, 2008 (the “Articles of
Incorporation”), to provide out of the unissued shares of Preferred
Stock, for series of Preferred Stock and, with respect to each such series, to
fix the number of shares constituting such series and the designation of such
series, the voting power (if any) of such shares of such series, and the
preferences and relative, participating, optional or other special rights, if
any, and any qualifications, limitations or restrictions thereof, of the shares
of such series.
WHEREAS,
the Board of Directors desires, pursuant to its authority as aforesaid, to
designate a series of Preferred Stock, set the number of shares constituting
such series and fix the preferences, rights, qualifications, limitations and
restrictions of such series.
NOW,
THEREFORE, BE IT RESOLVED, that the Board of Directors hereby designates a
series of Preferred Stock and the number of shares constituting such series and
fixes the preferences, rights, qualifications, limitations and restrictions
relating to such series as follows:
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Section
1.
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Designation
and Amount.
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The
series will be known as the “Series A Convertible Preferred Stock” (the “Series A Convertible
Preferred Stock”), and will be a series consisting of three million
(3,000,000) shares of the authorized but unissued preferred stock of the
Corporation, having a par value of $0.001 per share. Such number of
shares of Series A Convertible Preferred Stock may be increased or decreased by
the Board of Directors of the Corporation from time to time, provided that the
number of shares shall not be decreased below the number of shares then issued
and outstanding, plus the number of shares of such series reserved for issuance
upon exercise of outstanding rights, options or warrants or upon the conversion
or exchange of outstanding securities issued by the Corporation, nor increased
above the amount authorized in the Articles of Incorporation of the
Corporation.
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Section
2.
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Dividends
and Distributions.
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The
holders of the Series A Convertible Preferred Stock shall be entitled to
participate with the holders of the Corporation’s common stock, par value $0.001
per share, (the “Common Stock”) pari
passu in any dividends paid or set aside for payment so that holders of the
Series A Convertible Preferred Stock shall receive with respect to each share of
Series A Convertible Preferred Stock an amount equal to (x) the dividend payable
with respect to each share of Common Stock multiplied by (y) the number of
shares (and fraction of a share, if any) of Common Stock into which such share
of Series A Convertible Preferred Stock is convertible as of the record date for
such dividend.
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Section
3.
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Voting
Rights.
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The
holder of each share of Series A Convertible Preferred Stock shall be entitled
to the number of votes equal to the number of shares of Common Stock into which
each share of Series A Convertible Preferred Stock could be converted on the
record date for the vote or written consent of shareholders and, except as
otherwise required by law, shall have voting rights and powers equal to the
voting rights and powers of the Common Stock. The holder of each
share of Series A Convertible Preferred Stock shall be entitled to notice of any
shareholders’ meeting in accordance with the bylaws of the Corporation and shall
vote with holders of the Common Stock upon all other matters submitted to a vote
of shareholders, except those matters required to be submitted to a class or
series vote as required by Paragraph 7 hereof or by law. Fractional votes shall
not, however, be permitted and any fractional voting rights resulting from the
above formula (after aggregating all shares of Common Stock into which shares of
Series A Convertible Preferred Stock held by each holder could be converted)
shall be rounded to the nearest whole number (with one-half rounded upward to
one).
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Section
4.
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Conversion
Rate.
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Each
share of the Series A Convertible Preferred Stock may be converted into three
(3) shares of the Common Stock at any time at the holder’s discretion (the
“Conversion
Rate”). Fractional shares issuable upon such conversion will be rounded
up to the nearest full share.
(a) Mechanics of
Conversion. A holder of Series A Convertible Preferred Stock
may convert shares by surrendering to the Corporation each certificate covering
shares to be converted together with a statement of the name or names in which
the shares of Common Stock shall be registered upon issuance (the date of such
surrender, being the “Conversion Date”).
Every such notice of election to convert will constitute a contract between the
holder giving such notice and the Corporation, whereby such holder will be
deemed to subscribe for the shares of Common Stock he will be entitled to
receive upon such conversion and, in payment and satisfaction of such
subscription, to surrender the shares of Series A Convertible Preferred Stock to
be converted and to release the Corporation from all further obligation thereon
and whereby the Corporation will be deemed to accept the surrender of such
shares of Series A Convertible Preferred Stock in full payment of the shares of
Common Stock so subscribed for and to be issued upon such
conversion. As promptly as practicable after the Conversion Date, the
Corporation shall issue and deliver to the converting holder of the Series A
Convertible Preferred Stock a certificate representing the number of shares of
Common Stock into which the Series A Convertible Preferred Stock was converted
together with dividends, if any, payable on the Series A Convertible Preferred
Stock so converted as have accrued and are payable to holders of record of
Series A Convertible Preferred Stock on the record date immediately preceding
the Conversion Date. If a holder of Series A Convertible Preferred
Stock elects to convert only a portion of his Series A Convertible Preferred
Stock, upon such conversion the Corporation shall also deliver to the holder of
the Series A Convertible Preferred Stock a new Series A Convertible Preferred
Stock certificate representing the unconverted Series A Convertible Preferred
Stock.
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(b) Corporate
Transaction. In the event of the Corporation’s consolidation
with or merger into another corporation, or sale of all or substantially all of
the Corporation’s properties and assets to any other corporation, or in case of
the Corporation’s reorganization or exchange of equity securities with another
corporation, each share of Series A Convertible Preferred Stock will become
convertible only into the number of shares of stock or other securities, assets
or cash to which a holder of the number of shares of the Common Stock issuable
(at the time of such consolidation, merger or reorganization) upon conversion of
such share of Series A Convertible Preferred Stock would have been entitled upon
such consolidation, merger, sale, reorganization or exchange.
(c) Adjustment of Conversion
Rate. The Conversion Rate of the Series A Convertible
Preferred Stock shall be subject to adjustment from time to time as
follows:
i. If
the number of shares of the Common Stock outstanding at any time after the date
hereof is increased by a stock dividend payable in shares of Common Stock or by
a subdivision or split-up of shares of Common Stock, then, on the date such
payment is made or such change is effective, the Conversion Rate shall be
appropriately increased so that the number of shares of Common Stock issuable on
conversion of the Series A Convertible Preferred Stock shall be increased in
proportion to such increase of issued and outstanding shares of Common
Stock.
ii. If
the number of shares of the Common Stock issued and outstanding at any time
after the date hereof is decreased by a combination of the issued and
outstanding shares of Common Stock, then, on the effective date of such
combination, the Conversion Rate shall be appropriately decreased so that the
number of shares of Common Stock issuable on conversion of the Series A
Convertible Preferred Stock shall be decreased in proportion to such decrease in
issued and outstanding shares of Common Stock.
iii. In
case the Corporation shall declare a cash dividend upon its Common Stock payable
otherwise than out of retained earnings or shall distribute to holders of its
Common Stock shares of its capital stock (other than Common Stock), stock or
other securities of other persons, evidences of indebtedness issued by the
Corporation or other persons, assets (excluding cash dividends) or options or
rights (excluding options to purchase and rights to subscribe for Common Stock
or other securities of the Corporation convertible into or exchangeable for
Common Stock), then, in such case, the holders of shares of Series A Convertible
Preferred Stock shall, concurrent with the distribution to holders of Common
Stock, receive a like distribution based upon the number of shares of Common
Stock into which such Series A Convertible Preferred Stock is then
convertible.
(d) Certificate as to
Adjustments. Upon the occurrence of each adjustment or
readjustment of a Conversion Rate pursuant to this Paragraph 4, the Corporation
at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of
Series A Convertible Preferred Stock a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon written request at
any time of any holder of Series A Convertible Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth: (i)
such adjustments and readjustments, (ii) the Conversion Rate at the time in
effect for the Series A Convertible Preferred Stock held, and (iii) the number
of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of the Series A Convertible Preferred
Stock.
(e) Notices. Any
notice required by the provisions of this Paragraph 4 to be given to the holder
of shares of the Series A Convertible Preferred Stock shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to each
holder of record at his latest address appearing on the books of the
Corporation.
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Section
5.
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Liquidation,
Dissolution or Winding Up.
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In the
event of the Corporation’s involuntary liquidation, dissolution or winding up,
the holders of shares of Series A Convertible Preferred Stock will be entitled
to receive out of assets of the Corporation available for distribution to the
shareholders, before any distribution of assets is made to holders of Common
Stock or other stock ranking junior to the Series A Convertible Preferred Stock,
liquidating distributions in the amount of $7.50 per share, as duly adjusted
pursuant to Paragraph 4 hereof, plus accrued and unpaid dividends. If
upon any voluntary or involuntary liquidation, dissolution or winding up, the
amounts payable with respect to the Series A Convertible Preferred Stock and any
other shares of the Corporation’s stock ranking as to any such distribution on a
parity with the Series A Convertible Preferred Stock are not paid in full, the
holders of the Series A Convertible Preferred Stock and of such other shares
will share ratably in any such distribution of the Corporation’s assets in
proportion to the full respective preferential amounts to which they are
entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of Series A
Convertible Preferred Stock will be entitled to share in any further liquidation
on a pro-rata basis with any other preferred stock or Common
Stock. Such liquidation rights are not triggered by (i) any
consolidation or merger of the Corporation with or into any other corporation,
(ii) any dissolution, liquidation, winding up or reorganization of the
Corporation immediately followed by reincorporation of another corporation or
creation of a partnership or like entity, (iii) a sale or other disposition of
all or substantially all of the Corporation’s assets to another corporation,
partnership, or like entity, or (iv) an exchange of equity securities of the
Corporation with any other corporation, provided that in each case, as
applicable, effective provision is made in the certificate of incorporation of
the resulting and surviving corporation or the articles of partnership, or
otherwise, for the protection of the rights of the holders of Series A
Convertible Preferred Stock.
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Section
6.
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Redemption.
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The
Series A Convertible Preferred Stock shall not be subject to redemption by the
Corporation.
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Section
7.
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Amendment.
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The
Articles of Incorporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Convertible Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority of the outstanding shares of
Series A Convertible Preferred Stock, voting separately as a class.
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Section
8.
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Reservation
of Shares.
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The
Corporation shall, so long as any of the Series A Convertible Preferred Stock is
outstanding, take all action necessary to reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of effecting the
conversions of the Series A Convertible Preferred Stock, such number of shares
of Common Stock as shall from time to time be sufficient to effect the
conversion of all of the Series A Convertible Preferred Stock.
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Section
9.
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No
Implied Limitations.
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Except as
otherwise provided by express provisions of this Certificate, nothing herein
shall limit, by influence or otherwise, the discretionary right of the Board of
Directors to classify and reclassify and issue any shares of preferred stock and
to fix or alter any terms thereof to the full extent provided in the Articles of
Incorporation.
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Section
10.
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No
Preemptive Rights.
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Except as
provided by law or otherwise provided in this Certificate, no holder of shares
of Series A Convertible Preferred Stock shall be entitled, as such to any
preemptive or preferential rights to subscribe to any unissued stock or any
other securities which the Corporation may be authorized to issue.
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Section
11.
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General
Provisions.
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In
addition to the above provisions with respect to the Series A Convertible
Preferred Stock, such Series A Convertible Preferred Stock shall be subject to
and be entitled to the benefits of, the provisions set forth in the Articles of
Incorporation with respect to preferred stock generally.
IN
WITNESS WHEREOF, I have executed and subscribed this Certificate and do affirm
the foregoing as true under the penalties of perjury this 11th day of
February, 2011.
Colombia
Clean Power & Fuels, Inc.
By: /s/ Edward P. Mooney
Name: Edward
P. Mooney
Title: President
and Chief Executive Officer
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