CERTIFICATE
OF DESIGNATIONS,
PREFERENCES
AND RIGHTS OF
SERIES
A CONVERTIBLE PREFERRED STOCK OF
CAR
CHARGING GROUP, INC. (formerly, NEW IMAGE CONCEPTS, INC.)
Car
Charging Group, Inc. (formerly, New Image Concepts, Inc.), a Nevada Corporation
(the “Corporation”), DOES
HEREBY CERTIFY:
Pursuant
to authority expressly granted and vested in the Board of Directors of the
Corporation by the provisions of the Corporation’s Certificate of Incorporation,
as amended, the Board of Directors adopted the following resolution on December
7, 2009 (i) authorizing a series of the Corporation’s previously authorized
20,000,000 shares of preferred stock, par value $0.001 per share, and
(ii) providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of 20,000,000 shares of Series A Convertible Preferred
Stock of the Corporation, as follows:
RESOLVED, that pursuant to the
authority vested in the Board of Directors of the Corporation by the
Corporation’s Certificate of Incorporation (the “Certificate of Incorporation”)
as amended, a series of Preferred Stock of the Corporation be, and it hereby is,
created out of the 20,000,000 authorized but unissued shares of the capital
preferred stock of the Corporation, such series to be designated Series A
Convertible Preferred Stock (the “Series A Preferred Stock”), to consist of
20,000,000 shares, par value $0.001 per share, which shall have the following
preferences, powers, designations and other special rights;
1. Voting. Holders of the
Series A Preferred Stock shall have five (5) times that number of votes on all
matters submitted to the shareholders that is equal to the number of shares of
Common Stock (rounded to the nearest whole number) into which such holder’s
shares of Series A Preferred Stock are then convertible, as provided in Section
4, at the record date for the determination of the shareholders entitled to vote
on such matters or, if no such record date is established, at the date such vote
is taken or any written consent of such shareholders is effected.
2. Dividends. The
holders of Series A Preferred Stock shall not be entitled to receive dividends
paid on the Common Stock.
3. Liquidation
Preference. Upon the
liquidation, dissolution and winding up of the Corporation, whether voluntary or
involuntary, the holders of the Series A Preferred Stock then outstanding shall
be entitled to receive out of the assets of the Corporation, whether from
capital or from earnings available for distribution to its stockholders, before
any amount shall be paid to the holders of common stock, eight times that sum
available for distribution to common stock holders.
4.1 Conversion. At
any time on or after the date of issuance, the holder of any such shares of
Series A Preferred Stock may, at such holder's option, elect to convert (a
"Conversion") all or any portion of the shares of Series A Preferred Stock held
by such person into a number of fully paid and non-assessable shares of Common
Stock on a 2.5:1 basis (the “Conversion Rate”). In the event of a
liquidation, dissolution or winding up of the Company, the Conversion Rights
shall terminate at the close of business on the last full day preceding the date
fixed for the payment of any such amounts distributable on such event to the
holders of Series A Preferred Stock. In the event of such a
redemption or liquidation, dissolution or winding up, the Company shall provide
to each holder of shares of Series A Preferred Stock notice of such redemption
or liquidation, dissolution or winding up, which notice shall (i) be sent at
least fifteen (15) days prior to the termination of the Conversion Rights (or,
if the Company obtains lesser notice thereof, then as promptly as possible after
the date that it has obtained notice thereof) and (ii) state the amount per
share of Series A Preferred Stock that will be paid or distributed on such
redemption or liquidation, dissolution or winding up, as the case may
be.
No holder
of Series A Preferred Stock shall be entitled to conduct a Conversion which
would result in such shareholder beneficial owning more than 4.99% of the
outstanding shares of Common Stock of the Company after such
Conversion. For the purposes of the immediately preceding sentence,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Rule 13d-3
thereunder. Subject to the foregoing, the Subscriber shall not be
limited to aggregate conversions of only 4.99% and aggregate conversions by the
Subscriber may exceed 4.99%. The Subscriber may increase the
permitted beneficial ownership amount up to 9.99% upon and effective after 61
days prior written notice to the Company. Subscriber may allocate
which of the equity of the Company deemed beneficially owned by Subscriber shall
be included in the 4.99% amount described above and which shall be allocated to
the excess above 4.99%.
4.2 Adjustments
to Conversion Rate and Certain Other Adjustments. The Conversion Rate for
the number of shares of Common Stock into which the Series A Preferred Stock
shall be converted shall be subject to adjustment from time to time as
hereinafter set forth, notice of which shall be promptly provided to the Series
A Preferred Stock holders:
(a) Stock Dividends,
Recapitalization, Reclassification, Split-Up. If, prior to or on the date
of a Conversion, the number of outstanding shares of Common Stock is increased
by a stock dividend payable in shares of Common Stock or any right to acquire
Common Stock or by a split-up, recapitalization or reclassification of shares of
Common Stock or other similar event, then, on the effective date thereof, the
Conversion Rate will be adjusted so that the number of shares of Common Stock
issuable on such Conversion shall be increased in proportion to such increase in
outstanding shares of Common Stock.
(b) No Aggregation of
Shares. If prior to or on the date of a Conversion, the number of
outstanding shares of Common Stock is decreased by a consolidation, combination
or reclassification of shares of Common Stock or other similar event, then, upon
the effective date thereof, the number of shares of Common Stock issuable on
Conversion shall not be decreased in proportion to such decrease in outstanding
shares of Common Stock.
(c) Mergers or
Consolidations. If at any time or from time to time prior to the date of
a Conversion there is a merger, consolidation or similar capital reorganization
of the Common Stock, then as a part of such
capital reorganization, provision shall be made so that each holder of
outstanding Series A Preferred Stock at the time of such
Reorganization shall thereafter be entitled to receive, upon a Conversion, the
number of shares of stock or other securities or
property
of the Company to which a holder of the number of shares of Common Stock
deliverable upon Conversion by such holder would be entitled on such capital
reorganization, subject to adjustment in respect of such stock or securities by
the terms thereof. In any such case, the resulting or surviving corporation (if
not the Company) shall expressly assume the obligations to deliver, upon the
exercise of the conversion privilege, such securities or property as the holders
of the Series A Preferred Stock remaining outstanding (or of other convertible
preferred stock received by such holders in place thereof) shall be entitled to
receive pursuant to the provisions hereof, and to make provisions for the
protection of the conversion rights as provided above.
(d) Successive Changes.
The provisions of this Section shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations, sales or other
transfers.
5. Vote to
Change the Terms of or Issue Series A Preferred Stock. The affirmative
vote at a meeting duly called for such purpose, or the written consent without a
meeting, of the holders of not less than fifty-one percent (51%) of the then
outstanding shares of Series A Preferred Stock shall be required for (i) any
change to the Corporation’s Articles of Incorporation that would
amend, alter, change or repeal any of the preferences, limitations or relative
rights of the Series A Preferred Stock, or (ii) any issuance of additional
shares of Series A Preferred Stock.
6.
Notices. In
case at any time:
(a) the
Corporation shall offer for subscription pro rata to the holders of
its Common Stock any additional shares of stock of any class or other rights;
or
(b) there
shall be any Organic Change;
then, in
any one or more of such cases, the Corporation shall give, by first class mail,
postage prepaid, or by facsimile or by recognized overnight delivery service to
non-U.S. residents, addressed to the Registered Holders of the Series A
Preferred Stock at the address of each such Holder as shown on the books of the
Corporation, (i) at least twenty (20) Trading Days prior written notice of the
date on which the books of the Corporation shall close or a record shall be
taken for such subscription rights or for determining rights to vote in respect
of any such Organic Change and (ii) in the case of any such Organic Change, at
least twenty (20) Trading Days’ prior written notice of the date when the same
shall take place. Such notice in accordance with the foregoing clause
(i) shall also specify, in the case of any such subscription rights, the date on
which the holders of Common Stock shall be entitled thereto, and such notice in
accordance with clause (ii) shall also specify the date on which the holders of
Common Stock shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such Organic Change.
7.
Record
Owner. The Corporation may deem the person in whose name shares of Series
A Preferred Stock shall be registered upon the registry books of the Corporation
to be, and may treat him as, the absolute owner of the Series A Preferred Stock
for the purposes of conversion and for all other purposes, and the Corporation
shall not be affected by any notice to the contrary. All such payments and such
conversion shall be valid and effective to satisfy and discharge the liabilities
arising under this Certificate of Designations to the extent of the sum or sums
so paid or the conversion so made.
8. Register. The
Corporation shall maintain a transfer agent, which may be the transfer agent for
the Common Stock or the Corporation itself, for the registration of the Series A
Preferred Stock. Upon any transfer of shares of Series A Preferred
Stock in accordance with the provisions hereof, the Corporation shall register
or cause the transfer agent to register such transfer on the Stock
Register.
CONVERSION
NOTICE
Reference
is made to the Certificate of Designations, Preferences and Rights of Series A
Convertible Preferred Stock dated November ___, 2009 (the “Certificate of
Designations”), of Car Charging, Inc., a Nevada Corporation (the “Corporation”). In
accordance with and pursuant to the Certificate of Designations, the undersigned
hereby elects to convert the number of shares of Series A Preferred Stock, par
value $0.001 per share (the “Preferred Shares”) indicated
below into shares of Common Stock, par value $0.001 per share (the “Common Stock”), of the
Corporation, by tendering the stock certificate(s) representing the Preferred
Shares specified below as of the date specified below.
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Date of
Conversion:
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Number
of Preferred Shares to be converted:
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Please
confirm the following information:
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Number of shares of Common
Stock
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to be issued:
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Please
issue the Common Stock into which the Preferred Shares are being converted and,
if applicable, any check drawn on an account of the Corporation in the following
name and to the following address:
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Issue
to:
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Facsimile
Number:
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Authorization:
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By:
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Title:
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Applicable
only if the Transfer Agent is a participant in the electronic book entry
transfer program:
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Account
Number:
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(if electronic
book entry transfer):
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Transaction
Code Number
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(if electronic
book entry transfer):
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Participant
Code:
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THIS
NOTICE MUST BE DELIVERED TO THE TRANSFER AGENT:
WITH
AN ADDITIONAL COPY TO BE MAILED TO THE
CORPORATION