Attached files
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| 8-K - Plastinum Polymer Technologies Corp. | v208351_8k.htm |
CERTIFICATE
OF DESIGNATION,
PREFERENCES
AND RIGHTS
OF
SERIES
C CONVERTIBLE PREFERRED STOCK
OF
PLASTINUM
POLYMER TECHNOLOGIES CORP.
Pursuant
to Section 151 of the General Corporation Law
of
the State of Delaware
PLASTINUM
POLYMER TECHNOLOGIES CORP., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 151(g)
thereof,
DOES
HEREBY CERTIFY:
That
pursuant to the authority conferred upon the Board of Directors by the Second
Amended and Restated Certificate of Incorporation of the Corporation, as
amended, at a meeting of the Board of Directors held on December 23, 2010, the
Board of Directors adopted the following resolution:
RESOLVED, that pursuant to the
authority granted to the Board of Directors by the Second Amended and Restated
Certificate of Incorporation, as amended (the "Certificate"), the Board of
Directors hereby authorizes the creation and issuance of a series of Seven Million (7,000,000)
shares of Preferred Stock, $.01 par value, designated as "Series C Convertible
Preferred Stock", and hereby fixes the following designations, powers,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of such Series C
Convertible Preferred Stock, in addition to those set forth in the
Certificate:
Section I. Preferred
Stock.
1. Designation
The
designation of the series of Preferred Stock created hereby is “Series C
Convertible Preferred Stock” and the number of shares constituting such series
is Seven Million
(7,000,000) (the "Series
C Preferred Stock"). All shares of Series C Preferred Stock
shall be identical with each other in all respects.
2. Dividends
and Distributions.
(a) If dividends
or other distributions are declared or paid on the Common Stock of the
Corporation prior to the Conversion Date, then such dividends or distributions
shall be declared and paid pro rata on the Common Stock and the Series C
Preferred Stock, treating each share of Series C Preferred Stock as the greatest
whole number of shares of Common Stock then issuable upon conversion thereof
pursuant to Section 5 below.
(b) Dividends
and distributions shall be paid to the holders of record of the Series C
Preferred Stock as their names appear on the share register of the Corporation
upon a liquidation, dissolution or winding up pursuant to Section 2
below.
2. Liquidation
Preference.
(a) In
the event of any liquidation, dissolution, or winding up of the Corporation,
including, without limitation, a Deemed Liquidation, whether voluntary or
involuntary (a “Liquidation
Event”), the holders of the Series C Preferred Stock, shall be entitled
to receive, prior and in preference to any distribution of any of the assets,
capital or surplus funds of the Corporation to the holders of the Company's
Common Stock or any other holder of a class or series of Company capital stock
or other securities of the Company, an amount per share equal to $2.50 per share of Series C
Preferred Stock (as adjusted for any stock dividends, combinations, splits or
the like with respect to such share) (the “Series C Liquidation
Preference”). If upon the occurrence of a Liquidation Event,
(i) the assets, capital and funds thus distributed among the holders of the
Series C Preferred Stock shall be insufficient to permit the payment to such
holders of the full Series C Liquidation Preference, then the entire assets and
funds of the Corporation legally available for distribution shall be distributed
ratably among the holders of the Series C Preferred Stock in proportion to the
aggregate Series C Liquidation Preference each such holder is otherwise entitled
to receive or (ii) after payment to the holders of the Series C Preferred Stock
their full Series C Liquidation Preference there shall remain assets, capital or
funds of the Corporation legally available for distribution to the holders of
the Corporation’s Common Stock, then unless the assets of the Corporation are
not being liquidated in connection with such Liquidation Event, the holders of
the Series C Preferred Stock shall be entitled to receive a distribution of such
remaining assets, capital or funds ratably with the holders of the Common Stock
as if such Series C Preferred Stock had been converted into Common
Stock.
(b) A
“Deemed Liquidation”
shall mean (A) the acquisition of the Corporation by another entity or the
acquisition of another entity by the Corporation by means of any transaction or
series of related transactions (including, without limitation, any
reorganization, merger, or consolidation other than any merger effected
exclusively for the purpose of changing the domicile of the Corporation) or a
sale of all or substantially all of the assets of the Corporation unless, in the
case of any such transaction, series of transactions or sale, the Corporation’s
stockholders of record as constituted immediately prior to such transaction,
series of transactions or sale shall, immediately after such transaction, series
of transactions or sale (by virtue of securities issued as consideration for the
Corporation’s securities or otherwise) hold more than 50% of the voting power
and economic interest of the surviving or (in the case of a sale of all or
substantially all of the assets of the Corporation) acquiring entity in the same
proportions among such stockholders as held by them, and with the same relative
powers, privileges, preferences, rights and restrictions as among themselves and
as against the Corporation as, immediately prior to such transaction, series of
transactions or sale, or (B) a transaction or series of transactions in which a
person or group of persons (as defined in Rule 13d-5(b)(1) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) acquires or
following which has acquired beneficial ownership (as determined in accordance
with Rule 13d-3 of the Exchange Act) of 50% or more of the voting power or
economic interest of the Corporation.
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(c) In
the event of any Deemed Liquidation, if the consideration received is other than
cash, its value shall be deemed to be its Current Market Price (as such term is
defined herein). The consideration to be received by the holders of
Series C Preferred Stock in any such transaction shall be of the same type
(cash, securities or other property) and in the same proportion, as is payable
to holders of Common Stock as a result of the transaction unless the holders of
a majority of the outstanding shares of Series C Preferred Stock consent
otherwise.
(d)
For purposes hereof, the “Current Market Price” of any
asset other than cash means the greater of :
(A) $0.025 per share of Common
Stock; and
(B)(i) in the case
of a publicly traded security, 90% of the average of the daily closing prices
for such security for the 20 consecutive business days commencing 20 business
days before the date of determination, in which case the closing price for each
day shall be (x) the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the reported closing bid
and asked prices regular way, in either case on the principal national
securities exchange on which such security is listed or admitted to trading, or
(y) if not listed or admitted to trading on any national securities exchange,
the average of the highest reported bid and lowest reported asked prices as
furnished by the National Association of Securities Dealers, Inc.’s Automated
Quotation System, or the nearest comparable system; provided that in the event
that the security for which the Current Market Price is to be determined is
subject to any restriction on free marketability, then the method of valuation
of such security shall be to take an appropriate discount from the Current
Market Price as determined above to reflect the approximate fair market value
thereof; and
(ii) in the case
of any other asset, as agreed to in good faith by the Holder and the Board of
Directors.
3. Redemption.
The
Series C Preferred Stock shall not have any redemption or similar
rights.
4. Voting
Rights.
Each
holder of shares of Series C Preferred Stock shall be entitled to the number of
votes equal to the number of shares of Common Stock into which such shares of
Series C Preferred Stock would then be automatically converted into if the
condition for automatic conversion provided for in Section 5(a) hereof would
then be satisfied and shall have voting rights and powers equal to the voting
rights and powers of the Common Stock (except as otherwise expressly provided
herein or as required by law, voting together with the Common Stock as a single
class) and shall be entitled to notice of any stockholders’ meeting in
accordance with the By-Laws of the Corporation. Fractional votes
shall not, however, be permitted and any fractional voting rights shall be
rounded upward to the nearest whole number. For avoidance of doubt,
each reference herein to a percentage or other amount of shares of Series C
Preferred Stock, the holders of which are entitled to consent rights, approval
rights or other rights, shall be deemed to refer to such percentage or other
amount of the voting power of such shares determined as provided
above.
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5. Conversion.
(a) Each
share of Series C Preferred Stock shall automatically be converted into shares
of Common Stock at the then effective Conversion Price upon the filing by the
Company of a Current Report on Form 8-K disclosing an amendment to the
Corporation’s Certificate of Incorporation either providing for an increase in
the number of authorized shares of Common Stock to such number as would permit
the issuance of Common Stock upon the conversion of the Series C Preferred Stock
or providing for a reverse stock split, in either case to permit the conversion
of all outstanding shares of Series C Preferred Stock, such date being referred
to herein as the “Conversion
Date”. A holder of shares of Series C Preferred Stock shall
not have the option to convert the shares of Series C Preferred Stock into
Common Stock prior to the Conversion Date. The number of shares of
Common Stock into which each share of Series C Preferred Stock shall be
converted on the Conversion Date shall be determined by dividing $2.50 by the Conversion Price
in effect at the time of conversion. The Conversion Price shall
initially be $0.025 per
share (as adjusted for any stock dividends, combinations, splits or the like
with respect to the Series C Preferred Stock).
(b) The
Corporation shall, within five business days following the Conversion Date,
issue and deliver to such holder, or to its nominee, at such holder’s address as
shown in the records of the Corporation, a certificate or certificates for the
number of whole shares of Common Stock issuable upon such conversion in
accordance with the provisions hereof.
(c) No
fractional shares of Common Stock shall be issued upon conversion of shares of
Series C Preferred Stock and, after aggregating all fractional shares subject to
conversion, any remaining fractional share to which the holder would otherwise
be entitled shall be rounded up to the nearest whole number.
(d) As
of the Conversion Date, all shares of Series C Preferred Stock shall no longer
be deemed to be outstanding, and all rights with respect to such shares shall
immediately cease and terminate, except only the right of the holders thereof to
receive shares of Common Stock in exchange therefor and the payment of any
declared and unpaid dividends thereon. On the Conversion Date, the
shares of Common Stock issuable upon such conversion shall be deemed to be
outstanding, and the holder thereof shall be entitled to exercise and enjoy all
rights with respect to such shares of Common Stock. All shares of
Series C Preferred Stock shall, from and after the Conversion Date, be deemed to
have been retired and cancelled and shall not be reissued as Preferred Stock,
and the Corporation may thereafter take such appropriate action as may be
necessary to reduce accordingly the authorized number of shares of Preferred
Stock.
(f)
The term “Conversion
Price” shall mean, as of any time, the Conversion Price of the Series C
Preferred Stock as specified in paragraph (a) of this Section 5 in case no
adjustment shall have been required, or such Conversion Price as adjusted and
further adjusted pursuant to this paragraph (f) of this Section 5, as the case
may be.
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(1) If
the Corporation shall effect a subdivision of the outstanding Common Stock, the
Conversion Price then in effect immediately before such subdivision shall be
proportionately decreased. If the Corporation shall combine the
outstanding shares of Common Stock, the Conversion Price then in effect
immediately before the combination shall be proportionately
increased. If the Corporation shall make or issue a dividend or other
distribution payable in securities, then and in each such event provision shall
be made so that the holders of shares of the Series C Preferred Stock shall
receive upon conversion thereof in addition to the number of shares of Common
Stock receivable thereupon, the amount of securities that they would have
received had their Series C Preferred Stock been converted into Common Stock on
the date of such event and had they thereafter during the period from the date
of such event to and including the Conversion Date, retained such securities
receivable by them as aforesaid during such period giving effect to all
adjustments called for during such period under this paragraph with respect to
the rights of the holders of the Series C Preferred Stock. If the
Corporation shall reclassify its Common Stock (including any reclassification in
connection with a consolidation or merger in which the Corporation is the
surviving corporation), then and in each such event provision shall be made so
that the holders of Series C Preferred Stock shall receive upon conversion
thereof, the amount of such reclassified Common Stock that they would have
received had their Series C Preferred Stock been converted into Common Stock
immediately prior to such reclassification and had they thereafter during the
period from the date of such event to and including the Conversion Date,
retained such reclassified Common Stock giving effect to all adjustments called
for during such period under this paragraph with respect to the rights of these
holders of the Series C Preferred Stock.
(2) Whenever
the Conversion Price shall be adjusted as provided in this Section 5, the
Corporation shall forthwith provide notice of such adjustment to each holder of
shares of the Series C Preferred Stock, a statement, certified by the chief
financial officer of the Corporation, showing in detail the facts requiring such
adjustment and the Conversion Price that shall be in effect after such
adjustment. The Corporation shall send such notice and statement by
first class mail, postage prepaid, to each holder of record of Series C
Preferred Stock at such holder’s address as shown in the records of the
Corporation.
(3) If
a state of facts shall occur which, without being specifically controlled by the
provisions of this Section 5, would not fairly protect the conversion rights of
the holders of the Series C Preferred Stock in accordance with the essential
intent and principles of such provisions, then the Board of Directors of the
Corporation shall make an adjustment in the application of such provisions, in
accordance with such essential intent and principles, so as to protect such
conversion rights.
6. Protective
Provision. For so long as
any shares of Series C Preferred Stock are outstanding, the Company shall not,
without the affirmative vote of the holders of at least a majority of the shares
of Series C Preferred Stock then outstanding, alter or change the powers,
preferences or rights given to the Series C Preferred Stock or alter or amend
this Certificate of Designation.
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IN
WITNESS WHEREOF, this Certificate of Designation has been signed on this 13th day of
January, 2011, and the signature of the undersigned shall constitute the
affirmation and acknowledgement of the undersigned , under penalties of perjury,
that this Certificate if the act of the undersigned and that the facts stated in
this Certificate are true.
| PLASTINUM POLYMER TECHNOLOGIES CORP. | |||
|
|
By:
|
/s/ Jacques Mot | |
| Name: Jacques Mot | |||
| Title: President | |||
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