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EXHIBIT 4.1
CERTIFICATE OF DESIGNATIONS
OF THE
SERIES A PREFERRED STOCK
OF
SUMMA INDUSTRIES
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PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
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The undersigned, James R. Swartwout, President of Summa Industries,
a Delaware corporation (hereinafter, the "Corporation"), does hereby certify
that the following resolutions have been duly adopted by the Board of Directors
of this Corporation (the "Board of Directors"):
RESOLVED, that pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of this Corporation (the
"Certificate of Incorporation"), the Board of Directors hereby provides for the
issuance of a new series of Preferred Stock of this Corporation to consist of
5,000 shares, and the Board of Directors hereby fixes the voting powers,
designation, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the
shares of such series, in addition to those set forth in the Certificate of
Incorporation, as follows:
A. SERIES A PREFERRED STOCK. The new series of Preferred
Stock authorized hereby shall be designated the "Series A Preferred Stock",
and shall consist of 5,000 shares, $.001 par value; provided, however, that
the Board of Directors may decrease (but not increase) the number of shares
in such series subsequent to the date of original issuance of shares in such
series (the "Series A Original Issuance Date"), but not below the number of
shares of such series then outstanding. As long as any shares of Series A
Preferred Stock are outstanding, the Corporation shall not issue any
securities that rank senior to the Series A Preferred Stock. Fractional
shares of Series A Preferred Stock may not be issued.
B. RIGHTS, PREFERENCES AND RESTRICTIONS OF SERIES A
PREFERRED STOCK. The Series A Preferred Stock shall have the voting power,
preferences and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof, as set forth
below. For purposes of this Certificate of Designations, the terms "Common
Stock" and "Preferred Stock" shall have the meanings set forth in the
Certificate of Incorporation in effect as of the Series A Original Issuance
Date.
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1. DIVIDEND PROVISIONS. The holders of shares of Series A
Preferred Stock shall not be entitled to receive dividends of any kind prior
to conversion.
2. LIQUIDATION PREFERENCE.
a. In the event of any liquidation, dissolution or winding
up of the Corporation, either voluntary or involuntary (a "Liquidation
Event"), the holders of Series A Preferred Stock shall be entitled to
receive, prior and in preference to any distribution of any of the assets of
the Corporation to the holders of Common Stock by reason of their ownership
thereof, respectively, an amount per share equal to $1,000 for each
outstanding share, as adjusted for any stock dividends, combinations, splits
or reverse splits, subdivisions, consolidations or reclassifications with
respect to such shares occurring after the Series A Original Issuance Date
(collectively, "Series A Adjustment Events"), of Series A Preferred Stock
(the "Original Series A Issue Price") then held by them. The Series A
Preferred Stock shall rank senior to or on a parity as to the receipt of such
preferential amounts with each other series of Preferred Stock, if any, upon
the occurrence of such event. If upon any Liquidation Event, 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
aforesaid preferential amounts, then, subject to the rights of any series of
Preferred Stock that may from time to time come into existence, which rights
shall not be senior to the Series A Preferred Stock, 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. In connection with the distribution of any non-cash assets in
payment of the Series A Preferred Stock liquidation preference, the non-cash
assets will be valued at their fair market value, as determined in good faith
by the Board of Directors and at least a majority of the outstanding shares
of Series A Preferred Stock. If no such determination can be made, then such
parties shall in good faith select a mutually agreeable, non-affiliated party
to determine the value of such non-cash assets. All costs of such third party
shall be paid by the Corporation. If such parties cannot agree on a mutually
agreeable, non-affiliated party, then either the Corporation or holders of at
least a majority of the Series A Preferred Stock may petition to any court of
competent jurisdiction to appoint such a party.
b. Upon the completion of the distribution required by
subparagraph (a) of this Section 2 and any other distribution that may be
required with respect to any series of Preferred Stock that may from time to
time come into existence, for Liquidation Events excluding those set forth in
Section 2(c) below, the remaining assets of the Corporation available for
distribution to stockholders shall be distributed among all holders of the
Corporation's capital stock pro-rata based on the number of shares of Common
Stock held by each on an as-converted basis.
c. For purposes of this Section 2, a Liquidation Event
shall include (A) the acquisition of this Corporation by another entity by
means of any transaction or series of related transactions (including,
without limitation, any reorganization, merger or consolidation) that results
in the transfer of fifty percent (50%) or more of the outstanding voting
power of this Corporation; or (B) a sale or transfer of all or substantially
all of the assets of this Corporation.
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3. REDEMPTION. The Series A Preferred Stock shall be
redeemable as provided in this Section 3.
a. REDEMPTION PRICE. The "Series A Redemption Price"
shall be the Original Series A Issue Price per share of Series A Preferred
Stock to be redeemed (as adjusted for any Series A Adjustment Events) plus
the specific return amounts set forth elsewhere in this Section 3 (the
"Premiums"). The Premiums shall be subject to adjustment as set forth in
Section 3(d) below.
b. OPTIONAL REDEMPTION.
(i) At any time commencing on the fourth (4th)
anniversary of the Series A Original Issuance Date and ending immediately
prior to the fifth (5th) anniversary of the Series A Preferred Stock Issuance
Date, the Corporation may, at the option of the Board of Directors, redeem,
in whole or in part, the Series A Preferred Stock then outstanding at the
Series A Redemption Price plus a Premium (subject to adjustment under Section
3(d)) equal to an amount which equals a twenty (20) percent annual increase
over the Original Series A Issue Price per share, in cash. On the Company
Redemption Date (defined in Section 3(e)(iii) hereof), the Corporation shall
effect such redemption by paying in cash in exchange for the Series A
Preferred Stock to be redeemed the Series A Redemption Price plus a Premium
(subject to adjustment under Section 3(d)) equal to an amount which equals a
twenty (20) percent annual increase over the Original Series A Issue Price
per share, in cash. For clarity, assuming no adjustments to the Series A
Redemption Price or increase to the Premium, the foregoing Series A
Redemption Price plus Premium would equal $2,191 if the Company Redemption
Date is on the 110th day after the fourth anniversary of the Series A
Original Issuance Date, calculated as follows:
P
X = Y * (1 + I)
Where X = Series A Redemption Price plus Premium
Y = Series A Redemption Price ($1,000)
P = Compounding Period (years) (4 + 110/365)
I = Annual Premium Increase (20%)
(ii) At any time commencing on the third (3rd)
anniversary of the Series A Original Issuance Date and ending immediately
prior to the fourth (4th) anniversary thereof, a holder may require the
Corporation to redeem, in whole or in part, the Series A Preferred Stock then
held by such holder at the Series A Redemption Price plus a Premium (subject
to adjustment under Section 3(d)) equal to an amount which equals a twelve
(12) percent annual increase over the Original Series A Issue Price per
share, in cash. On the Holder Redemption Date (defined in Section 3(e)(ii)
hereof), the Corporation shall effect such redemption by paying in cash in
exchange for the Series A Preferred Stock to be redeemed the Series A
Redemption Price plus a Premium (subject to adjustment under Section 3(d))
equal to an amount which equals a twelve (12) percent annual increase over
the Original Series A Issue Price per share, in cash. The optional redemption
rights set forth in this Section 3(b)(ii) are non-
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transferable by the initial holder and non-separable from the shares,
provided however, that such rights may be transferred or assigned by a holder
of Series A Preferred Stock to a transferee or assignee of the Series A
Preferred Stock that (i) is a subsidiary, parent, current or former partner,
current or former limited partner, current or former member, current or
former manager or stockholder of such holder or (ii) is an entity
controlling, controlled by or under common control, or under common
investment management, with such holder, including without limitation a
corporation, partnership or limited liability company that is a direct or
indirect parent or subsidiary of such holder. For clarity, assuming no
adjustments to the Series A Redemption Price or increase to the Premium, the
foregoing Series A Redemption Price plus Premium would equal $1,504 if the
Holder Redemption Date is on the 220th day after the third anniversary of the
Series A Original Issuance Date, calculated as follows:
P
X = Y * (1 + I)
Where X = Series A Redemption Price plus Premium
Y = Series A Redemption Price ($1,000)
P = Compounding Period (years) (3 + 220/365)
I = Annual Premium Increase (12%)
c. MANDATORY REDEMPTION. The Corporation shall redeem, from
any source of funds legally available therefor, all then outstanding shares of
Series A Preferred Stock on the fifth (5th) anniversary (the "Mandatory
Redemption Date") of the Series A Original Issuance Date. On the Mandatory
Redemption Date, the Corporation shall effect such redemption by paying in cash
in exchange for the Series A Preferred Stock to be redeemed the Series A
Redemption Price, initially without any Premium (subject to adjustment under
Section 3(d)).
d. FAILURE TO REDEEM. In the event that the Corporation fails
to timely redeem some or all of the Series A Preferred Stock on any redemption
date required or requested pursuant to the terms of Sections 3(b)(i), 3(b)(ii)
or 3(c) above, then the Premium applicable to the redemption of the shares of
Series A Preferred Stock required or requested to be redeemed shall
automatically increase at a rate of one tenth of one percent (0.1%) per day
thereafter until redemption of the required or requested shares of Series A
Preferred Stock is made.
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e. MECHANICS OF REDEMPTION.
(i) In the event of a redemption by the
Corporation pursuant to Section 3(b)(i) of only a part of the then outstanding
Series A Preferred Stock, the Corporation shall effect such redemption pro rata
among the outstanding shares of Series A Preferred Stock according to the number
of shares held by each holder thereof.
(ii) In the event of a redemption pursuant to
Section 3(b)(ii), at least twenty-five (25), but no more than ninety (90) days
prior to the date fixed for any redemption of the Series A Preferred Stock (a
"Holder Redemption Date"), written notice (the "Redemption Notice") shall be
mailed, first class postage prepaid, to the Corporation. The Redemption Notice
shall state the name of the record holder of Series A Preferred Stock, the
number of shares of Series A Preferred Stock to be redeemed and any such other
information as the requesting holder desires to include. The Corporation shall,
within two (2) business days of the receipt of the Redemption Notice, mail
notice of such redemption request to each other holder of record of the Series A
Preferred Stock at the address last shown on the records of the Corporation for
such holder or given in writing by the holder to the Corporation for the purpose
of notice notifying such holder of the redemption to be effected. Thereafter,
each other holder may provide written notice to the Corporation to redeem some
or all of such holder's Series A Preferred Stock. Any such subsequent notice to
redeem shares of Series A Preferred Stock, if received by the Corporation within
four (4) business days after the Corporation's notice of the redemption request,
shall be treated as if such redemption request was initially included in the
Redemption Notice. Except as provided in subsection (iv) below, on or before the
Holder Redemption Date each holder of Series A Preferred Stock to be redeemed
shall surrender to the Corporation the certificate or certificates representing
such shares, and thereupon the Series A Redemption Price (including any
Premiums) of such shares shall be payable to the order of the person whose name
appears on such certificate or certificates as the owner thereof and each
surrendered certificate shall be canceled. In the event less than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares.
(iii) In the event of a redemption pursuant to
Section 3(b)(i) at least twenty (20), but no more than ninety (90) days prior to
the date fixed for any redemption of the Series A Preferred Stock (a "Company
Redemption Date"), written notice shall be mailed, first class postage prepaid,
to each holder of record of the Series A Preferred Stock to be redeemed, at the
address last shown on the records of the Corporation for such holder or given in
writing by the holder to the Corporation for the purpose of notice notifying
such holder of the redemption to be effected, specifying the number of shares to
be redeemed from such holder, the Company Redemption Date, the Series A
Redemption Price (including any Premiums), the place at which payment may be
obtained, and the date on which such holder's Conversion Rights (as defined in
Section 4) as to such shares terminate and calling upon the holder to surrender
to the Corporation, in the manner and at the place designated, such holder's
certificate or certificates representing the shares of Series A Preferred Stock
to be redeemed (a "Company Redemption Notice"). Except as provided in subsection
(iv) below, on or before the Company Redemption Date each holder of Series A
Preferred Stock to be redeemed shall surrender to the Corporation the
certificate or certificates representing such shares, in the manner and at the
place designated in the Company Redemption Notice, and thereupon the Series A
Redemption Price (including
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any Premiums) of such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof
and each surrendered certificate shall be canceled. In the event less than
all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(iv) From and after the Holder Redemption Date, the
Company Redemption Date or the Mandatory Redemption Date (collectively, a
"Redemption Date"), unless there shall have been a default in payment of the
Series A Redemption Price (including any Premiums), all rights of the holders of
such shares as holders of Series A Preferred Stock (except the right to receive
the Series A Redemption Price (including any Premiums) upon surrender of the
certificates), shall cease with respect to the shares, and such shares shall not
thereafter be transferred on the books of the Corporation or be deemed to be
outstanding for any purpose whatsoever.
(v) If the funds of the Corporation legally
available for redemption of shares of Series A Preferred Stock on any Redemption
Date, as applicable, are insufficient to redeem the total number of shares of
Series A Preferred Stock to be redeemed on such date, those funds which are
legally available will be used to redeem the maximum number of shares ratably
among the holders of such shares to be redeemed. The shares of Series A
Preferred Stock not redeemed shall remain outstanding and entitled to all the
rights and preferences provided herein and in the Certificate of Incorporation.
At any time thereafter, when additional funds of the Corporation are legally
available for redemption of shares of Series A Preferred Stock, such funds shall
be used to redeem the balance of the shares which the Corporation has become
obligated to redeem on any Redemption Date, as applicable, but which have not
been redeemed.
4. CONVERSION. The holders of the Series A Preferred Stock
shall have conversion rights as follows (the "Conversion Rights"):
a. RIGHT TO CONVERT.
(i) Subject to subsection (b), each share of Series
A Preferred Stock shall be convertible, at the option of the holder thereof, at
any time after the Series A Original Issuance Date and on or prior to the close
of business on the day prior to any Redemption Date as may have been fixed with
respect to such share, at the office of the Corporation or any transfer agent
for such stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing the Series A Original Issue Price by
the Conversion Price, determined as hereinafter provided, in effect at the time
of the conversion. The initial "Conversion Price" per share for shares of Series
A Preferred Stock shall be $8.00. The Conversion Price for the Series A
Preferred Stock shall be subject to adjustment as provided in this Section 4.
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(ii) In the event of a call for redemption of any
shares of Series A Preferred Stock pursuant to Section 3 hereof, the Conversion
Rights shall terminate as to the shares designated for redemption at the close
of business on the day prior to the Redemption Date, unless default is
thereafter made in payment of the Series A Redemption Price.
b. MECHANICS OF CONVERSION. Before any holder of Series
A Preferred Stock shall be entitled to convert the same into shares of Common
Stock, such holder shall surrender the certificate or certificates therefor,
duly endorsed, at the office of the Corporation or of any transfer agent for
such Series A Preferred Stock, and shall give written notice to the
Corporation at its principal corporate office, of the election to convert the
same and shall state therein the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. The Corporation
shall, within two (2) business days thereafter, issue and deliver at such
office to such holder of Series A Preferred Stock, or to the nominee or
nominees of such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid.
Such conversion shall be deemed to have been made immediately prior to the
close of business on the date of such surrender of the shares of Series A
Preferred Stock to be converted, and the person or persons entitled to
receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock as of such date.
c. ADJUSTMENTS TO CONVERSION PRICES OF SERIES A
PREFERRED STOCK. The Conversion Price of the Series A Preferred Stock shall
be subject to adjustment from time to time as follows:
(i) In the event the Corporation should at any time
or from time to time after the Series A Original Issuance Date fix a record date
for the effectuation of a split or subdivision of the outstanding shares of
Common Stock or the determination of holders of Common Stock entitled to receive
a dividend or other distribution payable in additional shares of Common Stock or
other securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
distribution or declaration of such Common Stock or Common Stock Equivalents, if
no record date is fixed), the Conversion Price of the Series A Preferred Stock
shall be appropriately decreased so that the number of shares of Common Stock
issuable on conversion of each share of Series A Preferred Stock shall be
increased in proportion to such increase of the aggregate of shares of Common
Stock outstanding and those issuable with respect to such Common Stock
Equivalents. The following shall be excluded from the foregoing adjustment
requirement: (A) any Common Stock or Common Stock Equivalents issued after the
Series A Original Issuance Date to directors, officers, employees and agents
pursuant to stock option plans or stock purchase plans or in connection with an
acquisition if approved by the Board of Directors, and (B) any Common Stock
issued as a result of the exercise or conversion of any Common Stock Equivalents
existing on the Series A Original Issuance Date.
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(ii) If the number of shares of Common Stock
outstanding at any time after the Series A Original Issuance Date is
decreased by a combination or reverse split of the outstanding shares of
Common Stock, then, following the record date of such combination or reverse
split, the Conversion Price for the Series A Preferred Stock shall be
appropriately increased so that the number of shares of Common Stock issuable
on conversion of each share of such series of Preferred Stock shall be
decreased in proportion to such decrease in outstanding shares.
(iii) If at any time during the 180 days
following the Series A Original Issuance Date, the Corporation shall issue or
sell, or contract to issue or sell, any shares of Common Stock, any share of
stock or other security of the Corporation convertible into or exchangeable for
Common Stock, or any other security convertible into, or exchangeable for Common
Stock, or any binding agreement or obligation of the Corporation to issue Common
Stock, except for shares of Common Stock and any other securities or options
convertible into or exchangeable for Common Stock issued or issuable to
officers, directors, employees or consultants of the Corporation pursuant to
stock grant, stock purchase and/or stock option plans or any other stock
incentive program approved by the Board of Directors, without consideration or
at a consideration per share less than the Conversion Price, as adjusted and in
effect immediately prior to the time of such issue or sale, then forthwith upon
such issue or sale, the Conversion Price shall be reduced to a price equal to
the lowest per share price of the securities issued or sold.
(iv) In the event the Corporation shall declare a
distribution payable in securities of other persons, evidences of indebtedness
issued by the Corporation or other persons, assets (excluding cash dividends) or
options or rights not referred to in subsection 4(c)(i), then, in each such case
for the purpose of this subsection 4(c)(iv), the holders of the Series A
Preferred Stock shall be entitled to a proportionate share of any such
distribution as though they were the holders of the number of shares of Common
Stock of the Corporation into which their shares of Series A Preferred Stock are
convertible as of the record date fixed for the determination of the holders of
Common Stock of the Corporation entitled to receive such distribution.
d. RECAPITALIZATIONS. If at any time or from time to time
there shall be a recapitalization of the Common Stock (other than a subdivision,
combination or any merger or consolidation of the Corporation with or into
another corporation or entity or person or any other corporate reorganization in
which the Corporation shall not be the continuing or surviving entity of such
merger, consolidation or reorganization, or the sale of all or substantially all
of the Corporation's assets to any third person, or any transaction by the
Corporation in which an excess of 50% of the Corporation's voting power is
transferred (a "Reorganization Transaction ")), provision shall be made so that
the holders of the Series A Preferred Stock shall thereafter be entitled to
receive upon conversion of such shares of Preferred Stock the number of shares
of stock or other securities or property of the Company or otherwise, to which a
holder of Common Stock deliverable upon conversion would have been entitled on
such recapitalization. In any such case, appropriate adjustment shall be made in
the application of the provisions of this Section 4 with respect to the rights
of the holders of the Series A Preferred Stock after the recapitalization to the
end that the provisions of this Section 4 (including adjustment of the
Conversion Price then in effect and the number of shares purchasable upon
conversion of the
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Series A Preferred Stock) shall be applicable after that event as nearly
equivalent as possible.
e. NO IMPAIRMENT. The Corporation will not, by amendment of
its Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 4 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of Series A Preferred Stock against impairment.
f. NO FRACTIONAL SHARES. No fractional shares shall be issued
upon the conversion of any share or shares of the Series A Preferred Stock, and
the number of shares of Common Stock to be issued shall be rounded to the
nearest whole share. Whether or not fractional shares are issuable upon such
conversion shall be determined on the basis of the total number of shares of
Series A Preferred Stock the holder is at the time converting into Common Stock
and the number of shares of Common Stock issuable upon such conversion.
g. CERTIFICATES AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Conversion Price of the Series A Preferred
Stock pursuant to this Section 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 Preferred Stock a certificate
executed by the Corporation's Chief Financial Officer setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Series A Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price for the Series A
Preferred Stock at the time in effect, 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 a share of Series A Preferred Stock.
h. NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
distribution, any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive
any other right, the Corporation shall mail to each holder of Series A Preferred
Stock, at least twenty (20) days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such distribution or right, and the amount and character of such distribution or
right.
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i. RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Series A Preferred Stock, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series A Preferred Stock; and if at
any time the number of authorized but unissued shares of Common Stock shall not
be sufficient to effect the conversion of all then outstanding shares of the
Series A Preferred Stock, in addition to such other remedies as shall be
available to the holders of such Preferred Stock, the Corporation will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purposes, including, without limitation, engaging
in best efforts to obtain the requisite stockholder approval of any necessary
amendment to its Certificate of Incorporation.
j. NOTICES. Any notice required by the provisions of this
Section 4 to be given to the holders of shares of Series A Preferred Stock shall
be deemed given if deposited in the United States mail, postage prepaid, and
addressed to each holder of record at such holder's address appearing on the
books of the Corporation.
5. VOTING RIGHTS. So long as any shares of Series A Preferred
Stock are outstanding, the Corporation shall not, without the affirmative
vote or the written consent as provided by law, of sixty-six and two-thirds
percent (66 2/3%) of the outstanding shares of the Series A Preferred Stock,
alter, change or amend the preferences, privileges or rights of Series A
Preferred Stock; provided that, for clarity, the shares of Series A Preferred
Stock shall have no rights to vote in relation to a Liquidation Event of the
type described in Section 2(c). In addition, if the Series A Redemption Price
plus any applicable Premium is otherwise required to be paid on a Redemption
Date and it is not so paid, then, following a grace period of ninety (90)
days thereafter during which payment may be made, the holders of at least a
majority in interest of the outstanding Series A Preferred Stock so entitled
to receive the Series A Redemption Price plus any applicable Premiums shall
be entitled to elect, either by vote or by written consent without the
necessity of a stockholders' meeting or otherwise following the nominations
procedure set forth in the Corporation's bylaws, a majority of the
Corporation's board of directors until such time as there are no longer any
issued and outstanding shares of Series A Preferred Stock. Incident with such
right to elect a majority of the the Corporation's board of directors is the
right to remove a majority of the board of directors, either by vote or by
written consent, without the necessity of a stockholders' meeting.
6. STATUS OF CONVERTED STOCK. In the event any shares of Series A
Preferred Stock shall be redeemed or converted pursuant to Section 3 or Section
4 hereof, or are otherwise acquired by the Corporation, the shares so redeemed,
converted or acquired shall be canceled and shall not be issuable by the
Corporation.
7. NO PREEMPTIVE RIGHTS. The holders of the Series A
Preferred Stock shall not have any preemptive rights.
8. PROTECTIVE PROVISION. This Corporation shall not amend,
modify or otherwise restate its bylaws without the approval (by vote or
written consent) of at least sixty-six and two-thirds percent (66 2/3%) of
the outstanding shares of Series A Preferred Stock.
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IN WITNESS WHEREOF, this Certificate of Designations is executed on
this 13th day of December 2001.
SUMMA INDUSTRIES
By: /s/ James R. Swartwout
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James R. Swartwout, President
ATTEST:
By: /s/ Trygve M. Thoresen
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Trygve M. Thoresen, Secretary