CERTIFICATE
OF DESIGNATION,
PREFERENCES
AND RIGHTS
of
SER
IES
A CONVERTIBLE PREFERRED STOCK
of
RINEON
GROUP
INC.
(Pursuant
to Section 78.1955 of the
Nevada
Revised Statues Law)
RINEON GROUP INC.
(formerly,
Jupiter Resources, Inc.), a corporation organized and existing under the laws of
the State of Nevada the
"Corporation"),
the
certificate of incorporation of which was filed in the office of the Secretary
of State of Nevada on June 15, 2006 and amended on March 25, 2009, and as
further amended on April 30, 2009, hereby certifies that the Board of Directors
of the Corporation (the
"Board
of
Directors"
or the
"Board"),
pursuant to
authority of the Board of Directors as required by Section 78.1955 of the Nevada
Revised Statutes, and in accordance with the provisions of its Certificate
of
Incorporation and Bylaws, each as amended and restated through the date
hereof, has and hereby authorizes a series of the Corporation's previously
authorized 10,000.000 shares of preferred stock, par value $0.001 per share (the
"Preferred Stock"),
and hereby states the designation and number of shares, and fixes the
relative rights, preferences, privileges, powers and restrictions thereof, as
follows:
1.
DESIGNATION AND AMOUNT
The
designation
of
this series, which consists of Thirty Six Thousand (36,000) shares of
Preferred Stock, is the Series A referred Stock (the "Series
A Preferred
Stock
") and the stated value amount
shall be One Thousand Dollars ($1,000.00) per share (the "
Stated
Value
").
II.
CERTAIN DEFINITIONS
Unless
otherwise defined in this Certificate of Designations, all capitalized terms,
when used herein, shall have the same meaning as is defined in the Preferred
Stock Purchase Agreement. For purposes of this Certificate of Designation, in
addition to the other terms defined herein, the following terms shall have the
following meanings:
A
"Affiliates"
of any particular Person
means any other Person that directly, or indirectly
through one or more intermediaries,
controls, or is controlled by or under common control with such Person. For
purposes of this definition, "
control
" (including the terms "
controlling"
"controlled
by" and
"under
common control
with
") means the possession, direct or
indirect, of the power to direct or
cause
the direction of the
management and policies of a Person, whether through the ownership of voting
securities. by contract or otherwise.
B.
“Bloomberg” shall hall mean Bloomberg,(or any successor to its
function of reporting
stock
prices),
C.
"Business Day"
means
any day, other than a Saturday or Sunday, or a day on which
banking
institutions in the State of New York are authorized or obligated by law,
regulation or executive
order
to close.
D.
"Business Combination"
means any merger, consolidation or combination of the Corporation or any
Subsidiary with or into any other corporation or entity, or any acquisition by
the Corporation or any Subsidiary
of
all
or substantially all the assets or
securities of, or majority voting or
Corporation
or any Subsidiary of all or substantially all the assets or securities of, or
majority voting or economic interest in, any other corporation or other entity,
or whether by merger, tender offer, asset purchase, stock purchase, or like
combination or consolidation;
provided, that
such transaction shall not constitute a Sale of Control.
E.
"Common
Stock"
means the common stock of the Corporation, par value $0.001 per
share, together with any securities into which the common stock may be
reclassified.
F.
"Common
Stock Deemed Outstanding"
shall mean the number of shares of Common Stock
actually outstanding (not including shares of Common Stock held in the treasury
of the Corporation), plus (x) the maximum total number of shares of Common Stock
issuable upon the exercise of the Options, as of the date of such issuance or
grant of such Options, if any, and (y) the maximum total number of shares of
Common Stock issuable upon conversion or exchange of Convertible Securities, as
of the date of issuance of such Convertible Securities, if any.
G.
"Conversion
Date"
means, for any Conversion, the date specified in the notice of
conversion in the form attached hereto (the
"Notice of
Conversion"),
so long as a copy of the Notice of Conversion is faxed,
emailed or delivered by other means resulting in notice to the Corporation
before 11:59 p.m., New York City time, on the Conversion Date indicated in the
Notice of Conversion;
provided, however,
that if
the Notice
of
Conversion is not so faxed, emailed or otherwise delivered before such
time, then the Conversion Date shall be the date the Holder faxes or otherwise
delivers the Notice of Conversion to the Corporation.
H.
"Convertible
Securities"
shall have the meaning as defined in Article VIII, Section
F(ii) of this Certificate of Designations.
I.
"Conversion
Shares"
means such number of shares of Common Stock as shall be
determined by dividing (i) the $1,000 Stated Value per share of Series A
Preferred Stock, by (ii) the Series A Conversion Price per share, then in
effect.
J.
"Corporation"
means the collective reference to (i) Rineon Resources, Inc., a Nevada
corporation, and (ii) its successor in interest, Rineon Group, Inc., a British
Virgin Islands corporation.
K.
"Dilutive
Issuance"
shall have the meaning as defined in Article VIII, Section E of
this Certificate of Designations.
L.
"Holder"
shall mean the collective reference to NatProv, its Affiliates or any one
or more holder(s) of the Series A Preferred Stock.
M.
"Issuance
Date"
means one (1) Business Day following the filing of this Series A
Certificate of Designation with the Secretary of State of the State of
Nevada.
N.
"Majority
Holders"
means the Holders of a majority of the then outstanding shares
of Series A Preferred Stock.
0.
"Market
Price"
means, as of any Trading Day, (i) the average of the last reported
sale prices for the shares of Common Stock on a national securities exchange
which is the principal trading market for the Common Stock for the five (5)
Trading Days immediately preceding such date as reported by Bloomberg or (ii) if
no national securities exchange is the principal trading market for the shares
of Common Stock, the average of the last reported sale prices on the principal
trading market for the Common Stock during the same period as reported by
Bloomberg, or (iii) if market value cannot be calculated as of such date on any
of the foregoing bases, the Market Price shall be the fair market value
as
reasonably
determined in good faith by (A) the Board of Directors of the Corporation, or
(B)
at the
option of a majority-in-interest of the holders of the outstanding Series A
Preferred Stocks by an independent investment bank of nationally recognized
standing in the valuation of businesses similar to the business of the
Corporation. The manner of determining the Market Price of the Common Stock set
forth in the foregoing definition shall apply with respect to any other security
in respect of which a determination as to market value must be made
hereunder.
P.
"NatProv"
shall mean NatProv Holdings, Inc., a British Virgin Islands
corporation.
Q.
"NatProv
Shareholder"
shall mean John Greenwood.
R.
"National
Securities Exchange"
means any one of the New York Stock Exchange, the
NYSE Alternext Exchange, the NASDAQ Capital Market, the OTC Bulletin Board or
any other national securities exchange in the United States where the
Corporation's Common Stock may trade.
S.
"Original
Issue Price"
means the sum of $1,000.00, representing the aggregate
purchase price for each share of Series A Preferred Stock at the Stated
Value.
T.
"Options"
shall have the meaning as defined in Article VIII, Section F(i) of this
Certificate
of Designations.
U
"Preferred
Stock Purchase Agreement"
shall mean that certain Preferred Stock
Purchase Agreement, dated as of April , 2009, by and among the Corporation, the
Rineon Principal Stockholder, NatProv and the NatProv Shareholder.
V.
"Rineon
Principal Stockholder"
shall mean Darcy George
Roney.
W.
"Series
A Preferred Stock"
shall mean the 36,000 shares of Series A Preferred
Stock authorized for issuance pursuant to this Certificate of Designation and
issued to NatProv pursuant to the Preferred Stock Purchase
Agreement.
X.
"Sale
of Control"
shall mean the sale or transfer of all or substantially all
of the assets or securities of the Corporation or any Subsidiary, whether by
stock sale, asset sale, merger, consolidation or like combination, in any one or
more series of transactions whereby control of the Board of Directors of the
Corporation or any Subsidiary shall no longer be vested in the Persons who
served as members of such Boards of Directors immediately prior to such
transaction.
Y.
"Series
A Conversion Price"
means at any one or more Conversion Date a price
equal to 100% of the VWAP per share of Common Stock, as traded on any National
Securities Exchange, for the twenty (20) Trading Days immediately prior to the
Conversion Date, or such other dollar amount (or fraction thereof) into which
such Series A Conversion Price may be adjusted pursuant to Article VIII of this
Certificate.
Z.
"Stated
Value"
means One Thousand Dollars ($1,000.00) per share of Series A
Preferred
Stock.
AA.
"Trading
Day"
shall mean any day on which the Common Stock is traded for any
period on the principal securities exchange or other securities market on which
the Common Stock is then being traded.
BB.
"VWAP"
means the
volume weighted average price per share of the Common Stock as
reported
by Bloomberg Reporting Service or other recognized stock market price reporting
service.
III.
DIVIDENDS
A
Holders of Series A Preferred Stock shall be entitled to receive dividends when,
as and if declared by the Board of Directors of the Corporation. No cash
dividends or distributions shall be declared or paid or set apart for payment on
the Common Stock unless such cash dividend or distribution is likewise declared,
paid or set apart for payment on the Series A Preferred Stock in an amount equal
to the dividend or distribution that would be payable if all of the issued and
outstanding shares of the Series A Preferred Stock had been fully converted into
Common Stock on the day immediately prior to the date which shall be the
earliest to occur of the declaration, payment, or distribution or such
dividend.
B.
Dividends on the Series A Preferred Stock are prior and in preference to any
declaration or payment of any dividend or other distribution (as defined below)
on any outstanding shares of Junior Securities (as hereinafter
defined).
IV.
CONVERSION
A.
Optional
Conversion
(i)
Subject
at all times to the provisions of Section A(iii) of this Article IV, Holders of
Series A Preferred Stock may at their option convert all or any portion of their
shares of Series A Preferred Stock into Common Stock of the Corporation at any
time or from time to time (an
"Optional
Conversion").
(ii)
In the
event of any one or more Optional Conversions or any Automatic Conversion
pursuant to this Article IV(A) (each a
"Conversion")
each
share of Series A Preferred Stock shall be convertible into a number of fully
paid and non-assessable shares of Common Stock determined in accordance with the
following formula:
The Original Issue
Price
Series A
Conversion Price then in effect
(iii)
Notwithstanding anything to the contrary, express or implied, contained in this
Certificate of Designation, without the prior written consent of the Holder and
the board of directors of the Corporation, the maximum number of shares of the
Corporation's Common Stock that may be owned of record or beneficially at any
point in time by any Holder of Series A Preferred Stock or any Affiliate of such
Holder (whether upon conversion(s) of Series A Preferred Stock, open market
purchases, other purchases of Corporation Common Stock, exercise of Options or
conversion or any Convertible Securities, or any combination of the foregoing)
shall not exceed an aggregate of 4.95% of the outstanding shares of the
Corporation's Common Stock
B.
Mechanics of Conversion.
In order to effect an Conversion, a Holder of shares of Series A
Preferred Stock shall: (i) fax (or otherwise deliver) a copy of the fully
executed Notice of Conversion to the Corporation (Attention: Secretary) and (ii)
surrender or cause to be surrendered the original certificates representing the
Series A Preferred Stock being converted (the
"Series A Preferred
Stock
Certificates"),
duly
endorsed, along with a copy of the Notice of Conversion as soon as practicable
thereafter to the Corporation. Upon receipt by the Corporation of a facsimile
copy of a Notice of Conversion from a Holder, the Corporation shall promptly
send, via facsimile, a confirmation to such Holder stating that the Notice of
Conversion has been received, the date upon which the Corporation expects to
deliver the Common Stock issuable upon such conversion and the name and
telephone number
of a
contact person at the Corporation regarding the conversion. The Corporation
shall not be obligated to issue shares of Common Stock upon a conversion unless
either the Series A Preferred Stock Certificates are delivered to the
Corporation as provided above, or the Holder notifies the Corporation that such
Series A Preferred Stock Certificates have been lost, stolen or destroyed and
delivers the documentation to the Corporation required by Article XII. B
hereof.
(i)
Delivery of Common Stock
Upon Conversion.
Upon the surrender of Series A Preferred Stock
Certificates accompanied by a Notice of Conversion, the Corporation (itself, or
through its transfer agent, as appropriate) shall, no later than the later of
(a) the fifth (5th) Business Day following the Conversion Date and (b) the
Business Day immediately following the date of such surrender (or, in the case
of lost, stolen or destroyed certificates, after provision of indemnity pursuant
to Article XI B) (the
"Delivery Period"),
issue and deliver (i.e., deposit with a nationally recognized overnight
courier service portage prepaid) to the Holder or its nominee (x) that number of
shares of Common Stock issuable upon conversion of such shares of Series A
Preferred Stock being converted and (y) a certificate representing the number of
shares of Series A Preferred Stock not being converted, if any. Notwithstanding
the foregoing, the Holder of Series A Preferred Stock shall, for all purposes,
be deemed to be a record owner of that number of shares of Common Stock issuable
upon conversion of those shares of Series A Preferred Stock set forth in the
Conversion Notice as at the date of such Conversion Notice. In addition, if the
Corporation's transfer agent is participating in the Depository Trust
Corporation ("DTC") Fast Automated Securities Transfer program, and so long as
the certificates therefor do not bear a legend (pursuant to the terms of the
Securities Preferred Stock Purchase Agreement) and the Holder thereof is not
then required to return such certificate for the placement of a legend thereon
(pursuant to the terms of the Securities Preferred Stock Purchase Agreement),
the Corporation shall cause its transfer agent to promptly electronically
transmit the Common Stock issuable upon conversion to the Holder by crediting
the account of the Holder or its nominee with DTC through its Deposit Withdrawal
Agent Commission system
("DTC Transfer").
If
the aforementioned conditions to a DTC Transfer are not satisfied, the
Corporation shall deliver as provided above to the Holder physical certificates
representing the Common Stock issuable upon conversion. Further, a Holder may
instruct the Corporation to deliver to the Holder physical certificates
representing the Common Stock issuable upon conversion in lieu of delivering
such shares by way of DTC Transfer.
(ii)
Taxes.
The
Corporation shall pay any and all taxes that may be imposed upon it respect to
the issuance and delivery of the shares of Common Stock upon the conversion of
the Series A Preferred Stock.
(iii)
No Fractional Shares.
If any conversion of Series A Preferred Stock would result in the
issuance of a fractional share of Common Stock (aggregating all shares of Series
A Preferred Stock being converted pursuant to a given Notice of Conversion),
such fractional share shall be payable in cash based upon the Series A
Conversion Price per share, and the number of shares of Common Stock issuable
upon conversion of the Series A Preferred Stock shall be the next lower whole
number of shares. If the Corporation elects not to, or is unable to, make such a
cash payment, the Holder shall be entitled to receive, in lieu of the final
fraction of a share, one whole share of Common Stock.
(iv)
Conversion Disputes.
In the case of any dispute with respect to a conversion, the Corporation
shall promptly issue such number of shares of Common Stock in accordance with
subparagraph (i) above as are not disputed. If such dispute involves the
calculation of the Series A Conversion Price, and such dispute is not promptly
resolved by discussion between the relevant Holder and the Corporation, the
Corporation and the Holder shall submit their disputed calculations to an
independent outside accountant via facsimile within three Business Days of
receipt of the Notice of Conversion. The accountant, at the Corporation's sole
expense, shall promptly audit the calculations and notify the Corporation and
the Holder of the results no later than three Business Days from the date
it
receives
the disputed calculations. The accountant's calculation shall be deemed
conclusive, absent manifest error. The Corporation shall then issue the
appropriate number of shares of Common Stock in accordance with subparagraph (i)
above.
(v)
Payment of Accrued Amounts.
Upon conversion of any shares of Series A Preferred Stock, all amounts
then accrued or payable on such shares under this Certificate of Designation
(including, without limitation, all Dividends, if any) through and including the
Conversion Date shall be paid by the Corporation in cash. In the event that the
Corporation elects to effect a payment-in-kind, the number of fully paid and
non-assessable shares of Common Stock due shall be determined in accordance with
the following formula:
All Amounts Accrued or
Payable
Series A
Conversion Price
V.
RESERVATION OF SHARES OF COMMON STOCK
A.
Reserved Amount.
Immediately following the Corporation's filing of an Amendment to its
Certificate of Incorporation authorizing an increase to its authorized Common
Stock, the Corporation shall reserve not less than 30,000,000 shares of its
authorized but unissued shares of Common Stock for issuance upon conversion of
the Series A Preferred Stock (including any shares that may be issuable in
connection with the adjustment provisions of this Certificate of Designations),
and, thereafter, the number of authorized but unissued shares of Common Stock so
reserved (the
"Reserved Amount")
shall at all times be sufficient to provide for the full conversion of
all of the Series A Preferred Stock (including any shares that may be issuable
in connection with the adjustment provisions of this Certificate of
Designations) outstanding or issuable upon conversion of Series A Preferred
Stock, at the current Series A Conversion Price thereof, and any anticipated
adjustments to such Series A Conversion Price.
B.
Increases to Reserved
Amount.
During the period that the Corporation's Common Stock is not
listed on any National Securities Exchange in the United States or abroad or the
OTC Bulletin Board, the Corporation shall, twice annually, review the Reserved
Amount for any stock splits, or adjustments on the Series A Preferred Stock, or
similar situations to determine whether the Reserved Amount needs to be
increased.
VI.
RANK
All
shares of the Series A Preferred Stock shall rank
senior
to
(a) any other class or series of Preferred Stock of the Corporation now existing
or hereafter created, (b) to all shares of the Corporation's Common Stock now
existing or hereafter issued, and (c) any other class of securities which is
specifically designated as junior to the Series A Preferred Stock (collectively,
with the Common Stock, the
"Junior Securities"),
in each case as to distribution of assets upon liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary.
VII.
LIQUIDATION PREFERENCE
A. In the
event of any liquidation, dissolution or winding up of the Corporation, either
voluntary or involuntary, distributions to the stockholders of the Corporation
shall be made in the following manner:
(i) Prior
and in preference to any distribution of any of the assets or surplus funds of
the Corporation to the holders of any Junior Securities, the Holders of Series A
Preferred Stock by reason of their ownership of such stock, shall receive an
amount equal to the sum of (x) $1,000.00 for each share
of Series
A Preferred Stock then held by them (the
"Initial Series A
Liquidation Preference Price"),
and (y) an amount equal to all unpaid
dividends on the Series A Preferred Stock, if any. If upon the occurrence of a
liquidation, dissolution or winding up of the Corporation the assets and funds
thus distributed among the holders of the Series A Preferred Stock shall be
insufficient to permit the payment to such holders of the full liquidation
preference amount based on the Initial Series A Liquidation Preference Price,
then the entire assets and funds of the Corporation legally available for
distribution shall be distributed ratably among the holders of the Series A
Preferred Stock in proportion to the preferential amount each such holder is
otherwise entitled to receive.
(ii) In
the event of any Sale of Control, in addition to the right of the Holder(s) of
the Series A Preferred Stock to receive the Initial Series A Liquidation
Preference Price, such Holder(s) shall also be entitled to participate with the
holders of the Corporation's Common Stock in receipt of the consideration
payable upon such Sale of Control to the extent 0.000099% of such consideration
for each one (1) share of Series A Preferred Stock then owned by the Holder(s),
or an aggregate of 4.95% of such consideration as to all 50,000 shares of Series
A Preferred Stock.
B. After
setting apart or paying in full the preferential amounts due pursuant to
Section
VII
(A)
above, the
remaining assets of the Corporation available for distribution to stockholders,
if any, shall be distributed to the holders of the Common Stock on a pro rata
basis, based on the number of shares of Common Stock then held by each
holder.
VIII.
ADJUSTMENTS
The
Series A Conversion Price and the number of Conversion Shares shall be subject
to adjustment as follows:
A.
Subdivision or Combination
of Common Stock.
If the Corporation at any time subdivides (by any stock
split, stock dividend, recapitalization, reorganization, reclassification or
otherwise) the shares of Common Stock acquirable hereunder into a greater number
of shares, then, after the date of record for effecting such subdivision, the
Conversion Shares issuable upon conversion of the Series A Preferred Stock will
be proportionately increased and the Series A Conversion Price in effect
immediately prior to such subdivision will be proportionately reduced. If the
Corporation at any time combines (by any reverse stock split, recapitalization,
reorganization, reclassification or otherwise) the shares of Common Stock
acquirable hereunder into a smaller number of shares, then, after the date of
record for effecting such combination, the Conversion Shares issuable upon
conversion of the Series A Preferred Stock will be proportionately reduced and
the Series A Conversion Price in effect immediately prior to such combination
will be proportionately increased.
B.
[Intentionally
Omitted].
C.
Consolidation, Merger or
Sale.
In case of any consolidation of the Corporation with, or merger of
the Corporation into any other corporation, or in case of any sale or conveyance
of all or substantially all of the assets of the Corporation other than in
connection with a plan of complete liquidation of the Corporation, then as a
condition of such consolidation, merger or sale or conveyance, adequate
provision will be made whereby the Holder of the Series A Preferred Stock will
have the right to acquire and receive upon conversion of the Series A Preferred
Stock in lieu of the shares of Common Stock immediately theretofore acquirable
upon the conversion of the Series A Preferred Stock, such shares of stock,
securities or assets as may be issued or payable with respect to or in exchange
for the number of shares of Common Stock immediately theretofore acquirable and
receivable upon conversion of the Series A Preferred Stock had such
consolidation, merger or sale or conveyance not taken place. In any such case,
the Corporation will make appropriate provision to insure that the provisions of
this Article
VIII
Section C hereof will thereafter be applicable as nearly as may be in relation
to any shares of stock or securities thereafter deliverable upon the conversion
of the Series A Preferred Stock. The Corporation will not effect any
consolidation, merger or sale or conveyance unless prior to the consummation
thereof, the successor corporation (if other than the Corporation) assumes by
written instrument the obligations under this Article VIII Section C and the
obligations to deliver to the Holder of the Series A Preferred Stock such shares
of stock, securities or assets as, in accordance with the foregoing provisions,
the Holder may be entitled to acquire.
D.
Distribution of Assets.
In case the Corporation shall declare or make any distribution of its
assets (including cash) to holders of Common Stock as a partial liquidating
dividend, by way of return of capital or otherwise, then, after the date of
record for determining shareholders entitled to such distribution (on an "as
converted" basis, as though all Series A Preferred Stock had been converted into
Common Stock immediately prior to the dividend declaration date), the Holder of
the Series A Preferred Stock shall be entitled upon conversion of the Series A
Preferred Stock for the purchase of any or all of the shares of Common Stock
subject hereto, to receive the amount of such assets which would have been
payable to the Holder had the Holder been the holder of such shares of Common
Stock on the record date for the determination of shareholders entitled to such
distribution.
E.
Adjustment Due to Dilutive
Issuance.
If, at any time when any shares of Series A Preferred Stock are
issued and outstanding, the Corporation issues or sells, or in accordance with
this Article VIII is deemed to have issued or sold, any shares of Common Stock
for no consideration or for a consideration per share (before deduction of
reasonable expenses or commissions or underwriting discounts or allowances in
connection therewith) less than the Series A Conversion Price in effect on the
date of such issuance (or deemed issuance) of such shares of Common Stock (a
"Dilutive Issuance"),
then immediately upon the Dilutive Issuance, the Series A Conversion
Price will be reduced to the price determined by multiplying the Series A
Conversion Price in effect immediately prior to the Dilutive Issuance by a
fraction, (i) the numerator of which is an amount equal to the sum of (x) the
number of shares of Common Stock Deemed Outstanding immediately prior to the
Dilutive Issuance, plus (y) the quotient of the aggregate consideration,
calculated as set forth in Article VIII, received by the Corporation upon such
Dilutive Issuance divided by the Series A Conversion Price in effect immediately
prior to the Dilutive Issuance, and (ii) the denominator of which is the Common
Stock Deemed Outstanding immediately after the Dilutive Issuance; provided that
only one adjustment will be made for each Dilutive Issuance. No adjustment to
the Series A Conversion Price shall have the effect of increasing the Series A
Conversion Price above the Series A Conversion Price in effect immediately prior
to such adjustment.
F.
Effect on Series
A Conversion Price of Certain Events.
For purposes of determining the
adjusted
Series A Conversion Price, the following will be applicable:
(i)
Issuance of Rights or
Options.
If the Corporation in any manner issues or grants any warrants
(other than the Warrants issued pursuant to the Preferred Stock Purchase
Agreement), rights or options, whether or not immediately exercisable, to
subscribe for or to purchase Common Stock or Convertible Securities (such
warrants, rights and options to purchase Common Stock or Convertible Securities
are hereinafter collectively referred to in this Article VIII as
"Options")
and the
price per share for which Common Stock is issuable upon the exercise of such
Options is less than the Series A Conversion Price on the date of issuance or
grant of such Options, then the maximum total number of shares of Common Stock
issuable upon the exercise of all such Options will, as of the date of the
issuance or grant of such Options, be deemed to be outstanding and to have been
issued and sold by the Corporation for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is issuable upon
the exercise of such Options" is determined by dividing (i) the total amount, if
any, received or receivable by the Corporation as consideration for the issuance
or granting of all such Options, plus the minimum aggregate amount of additional
consideration, if any,
payable
to the Corporation upon the exercise of all such Options, plus, in the case of
Convertible Securities (as hereinafter defined) issuable upon the exercise of
such Options, the minimum aggregate amount of additional consideration payable
upon the conversion or exchange thereof at the time such Convertible Securities
first become convertible or exchangeable, by (ii) the maximum total number of
shares of Common Stock issuable upon the exercise of all such Options (assuming
full conversion or exchange of Convertible Securities, if applicable). No
further adjustment to the Series A Conversion Price will be made upon the actual
issuance of such Common Stock upon the exercise of such Options or upon the
conversion or exchange of Convertible Securities issuable upon exercise of such
Options.
(ii)
Issuance of Convertible
Securities.
If the Corporation in any manner issues or sells any other
series or classes of Preferred Stock (other than the Series A Preferred Stock)
or other securities that are convertible into or exchangeable for Common Stock
("Convertible
Securities"),
whether or not immediately convertible (other than where
the same are issuable upon the exercise of Options) and the price per share for
which Common Stock is issuable upon such conversion or exchange is less than the
Series A Conversion Price on the date of issuance, then the maximum total number
of shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities will, as of the date of the issuance of such Convertible
Securities, be deemed to be outstanding and to have been issued and sold by the
Corporation for such price per share. For the purposes of the preceding
sentence, the "price per share for which Common Stock is issuable upon such
conversion or exchange" is determined by dividing (i) the total amount, if any,
received or receivable by the Corporation as consideration for the issuance or
sale of all such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the conversion
or exchange thereof at the time such Convertible Securities first become
convertible or exchangeable, by (ii) the maximum total number of shares of
Common Stock issuable upon the conversion or exchange of all such Convertible
Securities. No further adjustment to the Series A Conversion Price will be made
upon the actual issuance of such Common Stock upon conversion or exchange of
such Convertible Securities.
(iii)
Change in Option Price or
Conversion Rate.
If there is a change at any time in (i) the amount of
additional consideration payable to the Corporation upon the exercise of any
Options; (ii) the amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange of any Convertible Securities; or
(iii) the rate at which any Convertible Securities are convertible into or
exchangeable for Common Stock (other than under or by reason of provisions
designed to protect against dilution), the Series A Conversion Price in effect
at the time of such change will be readjusted to the Series A Conversion Price
which would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed additional consideration
or changed conversion rate, as the case may be, at the time initially granted,
issued or sold.
(iv)
Treatment of Expired Options
and Unexercised Convertible Securities.
If, in any case, the total number
of shares of Common Stock issuable upon exercise of any Option or upon
conversion or exchange of any Convertible Securities is not, in fact, issued and
the rights to exercise such Option or to convert or exchange such Convertible
Securities shall have expired or terminated, the Series A Conversion Price then
in effect will be readjusted to the Series A Conversion Price which would have
been in effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of shares
of Common Stock issued upon exercise or conversion thereof), never been
issued.
(v)
Calculation of Consideration
Received.
If any Common Stock, Options or Convertible Securities are
issued, granted or sold for cash, the consideration received therefor for
purposes hereof will be the amount received by the Corporation therefor, before
deduction of reasonable commissions, underwriting discounts or allowances or
other reasonable expenses paid or incurred by the
Corporation
in connection with such issuance, grant or sale. In case any Common Stock,
Options or Convertible Securities are issued or sold for a consideration part or
all of which shall be other than cash, the amount of the consideration other
than cash received by the Corporation will be the fair value of such
consideration, except where such consideration consists of securities, in which
case the amount of consideration received by the Corporation will be the Market
Price thereof as of the date of receipt. In case any Common Stock, Options or
Convertible Securities are issued in connection with any acquisition, merger or
consolidation in which the Corporation is the surviving corporation, the amount
of consideration therefor will be deemed to be the fair value of such portion of
the net assets and business of the non-surviving corporation as is attributable
to such Common Stock, Options or Convertible Securities, as the case may be. The
fair value of any consideration other than cash or securities will be determined
in good faith by the Board of Directors of the Corporation.
(G)
Exceptions to Adjustments.
Notwithstanding anything contained to the contrary in this Article VIII,
no adjustment to the Series A Conversion Price or Conversion Shares pursuant to
Section (E) of this Article VIII will be made:
(i)
upon the
issuance of shares of Common Stock or Options or Convertible Securities to
eligible Persons pursuant to any stock or option plan duly adopted by the Board
of Directors of the Corporation; or
(ii)
upon the
issuance of shares of Common Stock issuable upon the exercise of Options or
conversion of Convertible Securities that are outstanding as of the date of
filing of this Certificate of Designations.
(H)
Notice of Adjustment.
Upon the occurrence of any event which requires any adjustment of the
Series A Conversion Price, then, and in each such case, the Corporation shall
give notice thereof to the Holder of the Series A Preferred Stock, which notice
shall state the Series A Conversion Price resulting from such adjustment and the
increase or decrease in the number of Conversion Shares purchasable at such
price upon exercise, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Such calculation
shall be certified by the Chief Financial Officer of the
Corporation.
(I)
Minimum Adjustment of Series
A Conversion Price.
No adjustment of the Series A Conversion Price shall
be made in an amount of less than 1% of the Series A Conversion Price in effect
at the time such adjustment is otherwise required to be made, but any such
lesser adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such Series
A Conversion Price.
(J)
No Fractional Shares.
No fractional shares of Common Stock are to be issued upon the conversion
of the Series A Preferred Stock, but the Corporation shall pay a cash adjustment
in respect of any fractional share which would otherwise be issuable in an
amount equal to the same fraction of the average Market Price per share of the
Common Stock for the five (5) Trading Days immediately prior to the date of such
exercise.
(K)
Other Notices.
In case at any time:
(i) the
Corporation shall declare any dividend upon the Common Stock payable in shares
of stock of any class or make any other distribution (including dividends or
distributions payable in cash out of retained earnings) to the holders of the
Common Stock;
(ii)
the
Corporation shall offer for subscription pro rata to the holders of the
Common
Stock any additional shares of stock of any class or other rights;
(iii)
there
shall be any capital reorganization of the Corporation, or reclassification of
the Common Stock, or consolidation or merger of the Corporation with or into, or
sale of all or substantially all its assets to, another corporation or
entity;
(iv)there
shall be a voluntary or involuntary dissolution, liquidation or winding up of
the
Corporation;
then, in
each such case, the Corporation shall give to the Holder of the Series A
Preferred Stock (a) notice of the date on which the books of the Corporation
shall close or a record shall be taken for determining the holders of Common
Stock entitled to receive any such dividend, distribution, or subscription
rights or for determining the holders of Common Stock entitled 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 of the Corporation, notice of the date (or, if not
then known, a reasonable approximation thereof by the Corporation) when the same
shall take place. Such notice shall also specify the date on which the holders
of Common Stock shall be entitled to receive such dividend, distribution, or
subscription rights or to exchange their Common Stock for stock or other
securities or property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or winding-up, as the
case may be. Such notice shall be given at least thirty (30) days prior to the
record date or the date on which the Corporation's books are closed in respect
thereto. Failure to give any such notice or any defect therein shall not affect
the validity of the proceedings referred to in clauses (i), (ii), (iii) and (iv)
above.
IX.
VOTING RIGHTS
A.
Class Voting Rights.
Holders of the Series A Preferred Stock shall vote together as a separate
class on all matters which impact the rights, value or conversion terms, or
ranking of the Series A Preferred Stock, as provided herein.
B.
No Other Voting Rights.
Except as set forth in Section A of this Article IX, the Series A
Preferred Stock shall not vote on any matter submitted to the stockholders of
the Corporation and Holder(s) of the Series A Preferred Stock shall have no
other voting rights.
X.
MISCELLANEOUS
A.
Cancellation of Series A
Preferred Stock
If any shares of Series A Preferred Stock are converted
pursuant to this Series A Certificate of Designations, the shares so converted
or redeemed shall be canceled, shall return to the status of authorized, but
unissued Series A Preferred Stock of no designated series, and shall not be
issuable by the Corporation as Series A Preferred Stock.
B.
Lost or Stolen Certificates.
Upon receipt by the Corporation of (i) evidence of the lost, theft,
destruction or mutilation of any Series A Preferred Stock Certificate(s) and
(ii) (y) in the case of loss, theft or destruction, indemnity (without any bond
or other security) reasonably satisfactory to the Corporation, or (z) in the
case of mutilation, the Series A Preferred Stock Certificate(s) (surrendered for
cancellation), the Corporation shall execute and deliver new Series A Preferred
Stock Certificate(s) of like tenor and date. However, the Corporation shall not
be obligated to reissue such lost, stolen, destroyed or mutilated Series A
Preferred Stock Certificate(s) if the Holder contemporaneously requests the
Corporation to convert such Series A Preferred Stock.
C
Waiver
Notwithstanding any provision in this Certificate of Designation to the
contrary, any provision contained herein and any right of the Holders of Series
A Preferred Stock granted hereunder may be waived as to all shares of Series A
Preferred Stock (and the Holders thereof) upon the written consent of the
Majority Holders, unless a higher percentage is required by applicable law, in
which case the written consent of the Holders of not less than such higher
percentage of shares of Series A Preferred Stock shall be required.
D.
Information Rights
So long as shares of Series A Preferred Stock are outstanding, the
Corporation will deliver to each Holder of Series A Preferred Stock (i) audited
annual financial statements to the Holders of Series A Preferred Stock within 90
days after the end of each fiscal year; (ii) and unaudited quarterly financial
statements within 45 days of the end of each fiscal quarter. To the extent that
such information is electronically available on the Corporation's Form 10-K
Annual Reports, Form 10-Q Quarterly Reports, Form 8-K Periodic Reports and
Annual Reports to Shareholders, the Corporation need not separately furnish such
documents to Holders of the Series A Preferred Stock.
E
Notices.
Any
notices required or permitted to be given under the terms hereof shall be sent
by certified or registered mail (return receipt requested) or delivered
personally, by nationally recognized overnight carries or by confirmed facsimile
transmission, and shall be effective five days after being placed in the mail,
if mailed, or upon receipt or refusal of receipt, if delivered personally or by
nationally recognized overnight carrier or confirmed facsimile transmission, in
each case addressed to a party. The addresses for such communications are (i) if
to the Corporation to Rineon Resources, Inc. 408 Royal Street, Imperial,
Saskatchewan, Canada SOG 2J0, attn: Chief Executive Officer; and (ii) if to any
Holder to the address set forth in the Preferred Stock Purchase Agreement, or
such other address as may be designated in writing hereafter, in the same
manner, by such person.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the undersigned declares under penalty of perjury under the
laws
or
the State of Nevada that he has read the foregoing Certificate of
Designation and knows the contents thereof, and that he is duly authorized to
execute the same on behalf of the Corporation, this __ day of May
2009.
|
JUPITER
RESOURCES, INC.
|
|
|
|
By:
|
/
s/ Darcy George
Roney
|
|
|
Name:
|
Darcy
George Roney
|
|
|
Title:
|
President
|
NOTICE
OF CONVERSION
(To be
Executed by the Registered Holder
in order
to Convert the Series A Preferred Stock)
The
undersigned hereby irrevocably elects to convert ______________
shares of Series A Convertible
Preferred
Stock (the "Conversion"), represented by Stock Certificate No(s).
______________________ (the "Series
A
Preferred Stock Certificates"), into shares of common stock ("Common Stock") of
National Holdings Corporation (the "Corporation") according to the conditions of
the Certificate of Designation, Preferences and Rights of Series A Preferred
Stock (the "Certificate of Designation"), as of the date written below. If
securities are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto. No fee
will be charged to the Holder for any conversion, except for transfer taxes, if
any Each Series A Preferred Stock Certificate is attached hereto (or evidence of
loss, theft or destruction thereof).
Except as
may be provided below, the Corporation shall electronically transmit the Common
Stock issuable pursuant to this Notice of Conversion to the account of the
undersigned or its nominee (which is ________________________
) with
DTC through its Deposit Withdrawal Agent Commission System
("DTC
Transfer").
In the
event of partial exercise, please reissue a new stock certificate for the number
of shares of Series A Preferred Stock which shall not have been
converted.
The
undersigned acknowledges and agrees that all offers and sales by the undersigned
of the securities issuable to the undersigned upon conversion of Series A
Preferred Stock have been or will be made only pursuant to an effective
registration of the transfer of the Common Stock under the Securities Act of
1933, as amended (the "Act"), or pursuant to an exemption from registration
under the Act.
In lieu
of receiving the shares of Common Stock issuable pursuant to this Notice of
Conversion by way of DTC Transfer, the undersigned hereby requests that the
Corporation issue and deliver to the undersigned physical certificates
representing such shares of Common Stock.
Date of
Conversion:
Applicable
Series A Conversion Price: $ ______________
Signature:
Name:
Address:
