EXHIBIT 3.4
UNANIMOUS WRITTEN CONSENT AND ACTION
OF THE
BOARD OF DIRECTORS
OF
CORPORATE UNIVERSE, mc.
Signed on December 31, 2020 |
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| Isaac H. Sutton—CEO, Sole Director |
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I, Isaac H. Sutton, the duly elected and acting Secretary of Corporate Universe Inc., hereby certify that the forgoing consent was duly entered into as of the day and year first set forth above, that it has been filed in the record of proceedings of the Board pf Directors of the Corporation, and that it has not been modified or revoked.
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| Isaac H. Sutton, Secretary |
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CERTIFICATE OF DESIGNATION
OF THE RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS, WHICH
HAVE NOT BEEN SET FORTH IN THE CERTIFICATE OF INCORPORATION
OR IN ANY AMENDMENT THERETO,
OF THE
SERIES E CONVERTIBLE PREFERRED STOCK
OF
CORPORATE UNIVERSE INC.
The undersigned, Isaac H. Sutton, does hereby certify that:
C. The Board of Directors believes it in the best interests of the Corporation to create a new series of preferred stock consisting of EIGHTY-ONE THOUSAND ONE HUNDRED (81,100) shares and designated as the “Series E Convertible Preferred Stock” having certain rights, preferences, privileges, restrictions and other matters relating to the Series E Convertible Preferred Stock; and
D. None of the Series E Convertible Preferred Stock are issued or outstanding.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby fix and determine the rights, preferences, privileges, restrictions, and other matters relating do the Series E Convertible Preferred Stock as follows:
1. Definitions. For purposes of this Certificate of Designation, the following definitions shall apply:
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1.2 “Board” shall mean the Board of Directors of the Corporation.
1.3 “Common Stock” shall mean the common stock, $0.0001 par value per share, of the Corporation.
1.4 “Common Stock Dividend” shall mean a stock dividend declared and paid on the Common Stock that is payable in shares of Common Stock.
1.5 “Conversion Date” shall have the meaning set forth in Section 4.2 below.
1.7 “Corporation” shall mean Corporate Universe, Inc., a Delaware corporation.
1.8 “Distribution” shall mean the transfer of cash or property by the Corporation to one or more of its stockholders without consideration, whether by dividend or otherwise (except a dividend in shares of Corporation's stock).
1.9 “Holder” shall mean a holder of the Series E Convertible Preferred Stock.
1.10 “Original Issue Price” shall mean $5.00 per share for the Series E Convertible Preferred Stock.
1.11 “Person” shall mean an individual, a corporation, a partnership, an association, a limited liability company, an unincorporated business organization, a trust or other entity or organization, and any government or political subdivision or any agency or instrumentality thereof.
1.12 “Series E Convertible Preferred Stock” shall mean the Series E Convertible Preferred Stock, $0.0001 par value per share, of the Corporation.
1.13 “Share Exchange Agreement” shall mean the Share Exchange Agreement, dated as of December 3 1, 2020, between the Corporation and certain Holders.
1.14 “Subsidiary” shall mean any corporation or limited liability company or corporation of which at least fifty percent (50%) of the outstanding voting stock or membership interests, as the case may be, is at the time owned directly or indirectly by the Corporation or by one or more of such subsidiary corporations.
2.1 Dividends. In each calendar year, the holders of the then outstanding shares of Series E Convertible Preferred Stock shall be entitled to receive, when, as and if declared by the Board, out of any funds and assets of the Corporation legally available therefore, noncumulative dividends in an amount equal to any dividends or other Distribution on the Common Stock in such calendar year on an as-converted to-Common Stock basis. No dividends shall be paid, and no Distribution shall be made, with respect to the Common Stock unless dividends in such amount shall have been paid or declared and set apart for payment to the holders of the Series E Convertible Preferred Stock simultaneously. Dividends on the Series E Convertible Preferred Stock shall not be mandatory or cumulative, and no rights or interest shall accrue to the holders of the Series E Convertible Preferred Stock by reason of the fact that the Corporation shall fail to declare or pay dividends on the Series E Convertible Preferred Stock, except for such rights or interest that may arise as a result of the Corporation paying a dividend or making a Distribution on the Common Stock in violation of the terms of this Section 2.
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3.2 Participation Rights. If there are any Available Funds and Assets remaining after the payment or distribution (or the setting aside for payment or distribution) to the holders of the Series E Convertible Preferred Stock of their full preferential amounts described above in this Section 3, then all such remaining Available Funds and Assets shall be distributed among the holders of the then outstanding Common Stock and Series E Convertible Preferred Stock pro rata according to the number and preferences of the shares of Common Stock and Series E Convertible Preferred Stock (as converted to Common Stock) held by such holders.
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Notwithstanding the foregoing, in no event shall any holder of shares of Series E Convertible Preferred Stock be entitled to convert any shares of Series E Convertible Preferred Stock, and the Corporation shall not effect any conversion of the Series E Convertible Preferred Stock, to the extent that the number of shares of Common Stock issuable upon the conversion would result in beneficial ownership by the holder, its affiliates and any persons acting as a group together with such holder or its affiliates of more than 4.99% (the “Beneficial Ownership Limitation”) of the outstanding shares of Common Stock immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of the Series E Convertible Preferred Stock held by the applicable holder. For purposes of this paragraph, in determining the number of outstanding shares of Common Stock, a holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation's most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Corporation shall within one business day confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. To ensure compliance with this restriction, each holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such the holder, its affiliates and any persons acting as a group together with such holder or its affiliates shall include the number of shares of Common Stock issuable upon conversion of the Series E Convertible Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted shares of Series E Convertible Preferred Stock beneficially owned by such holder, its affiliates and any persons acting as a group together with such holder or its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, this Series E Convertible Preferred Stock) beneficially owned by such holder, its affiliates and any persons acting as a group together with such holder or its affiliates. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder. A Holder, upon notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation provisions applicable to its Series E Convertible Preferred Stock provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Series E Convertible Preferred Stock held by the Holder and the provisions of this paragraph shall continue to apply. Any such increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Corporation and shall only apply to such Holder and no other Holder. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of the Series E Convertible Preferred Stock.
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4.2 Procedures for Exercise of Conversion Rights. The holders of shares of Series E Convertible Preferred Stock may exercise their conversion rights as to such shares by delivering to the Corporation during regular business hours, at the office of any transfer agent of the Corporation for the Series E Convertible Preferred Stock, or at the principal office of the Corporation or at such other place as may be designated by the Corporation, by email attachment or facsimile, a written notice stating that the holder elects to convert such shares of Series E Convertible Preferred Stock (“Notice of Conversion”), followed by, if required hereunder, the certificate or certificates for the shares to be converted hereunder within five (5) business days thereafter. Conversion shall be deemed to have been effected on the date when such delivery of the Notice of Conversion is made, and such date is referred to herein as the “Conversion Date.” No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion be required. As promptly as practicable after the Conversion Date, but not later than two (2) business days after the Conversion Date (“Share Delivery Date”), the Corporation shall issue and deliver to or upon the written order of such holder, at such office or other place designated by the Corporation, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled and a check for cash with respect to any fractional interest in a share of Common Stock as provided in Section 4.3 below, which, on or after the earlier of (i) the six month anniversary of the original issue date or (ii) the date on which an effective registration statement registers the resale of the Conversion Shares, shall be free of restrictive legends and trading restrictions and the Corporation shall use its best efforts to deliver the Conversion Shares required to be delivered by the Corporation hereunder electronically through the Depository Trust Company or another established clearing corporation performing similar functions. The holder shall be deemed to have become a shareholder of record on the Conversion Date. To effect conversions of shares of Series E Convertible Preferred Stock, a holder shall not be required to surrender the certificate(s) representing the shares of Series E Convertible Preferred Stock to the Corporation unless all of the shares of Series E Convertible Preferred Stock represented thereby are so converted, in which case such holder shall deliver the certificate representing such shares of Series E Convertible Preferred Stock promptly following the Conversion Date at issue.
4.4 In addition to any other rights available to the Holder, if the Corporation fails for any reason to deliver to a Holder the applicable Conversion Shares by the Share Delivery Date, and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder's brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”). then the Corporation shall (A) pay in cash to such Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder's total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (I) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied .by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of such Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number of shares of Preferred Stock submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 4.2 For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In and, upon request of the Corporation, evidence of the amount of such loss. Nothing herein shall limit a Holder's right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation's failure to timely deliver the Conversion Shares upon conversion of the shares of Preferred Stock as required pursuant to the terms hereof.
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4.6 Payment of Taxes for Conversions. The Corporation shall pay any and all issue and other taxes that may be payable in respect of any issue or delivery of shares of Common Stock on conversion pursuant hereto of Series E Convertible Preferred Stock. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series E Convertible Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Corporation the amount of any such tax, or has established, to the satisfaction of the Corporation, that such tax has been paid.
4.10 Status of Converted Preferred Stock. In case any shares of Series E Convertible Preferred Stock shall be converted pursuant to this Section 4, the shares so converted shall be canceled and the number of shares of Series E Convertible Stock so canceled will again be issuable by the Corporation.
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5. Redemption. The Series E Convertible Preferred Stock shall not be redeemable.
6.1 General Provisions. In case, at any time after the date hereof, of any capital reorganization, or any reclassification of the stock of the Corporation (other than a change in par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or the consolidation or merger of the Corporation with or into another person (other than a consolidation or merger in which the Corporation is the continuing entity and which does not result in any change in the Common Stock), or of the sale or other disposition of all or substantially all the properties and assets of the Corporation as an entirety to any other person, the shares of Series E Convertible Preferred Stock shall, after such reorganization, reclassification, consolidation, merger, sale or other disposition, be convertible into the kind and number of shares of stock or other securities or property of the Corporation or of the entity resulting from such consolidation or surviving such merger or to which such properties and assets shall have been sold or otherwise disposed to which such holder would have been entitled if immediately prior to such reorganization, reclassification, consolidation, merger, sale or other disposition it had converted its shares of Series E Convertible Preferred Stock into Common Stock. The provisions of this Section 6.1 shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales, or other dispositions.
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8. Protective Provisions. The Corporation may not take any of the following actions without the approval of 75% of the holders of the outstanding Series E Convertible Preferred Stock: (i) effect a sale of all or substantially all of the Corporation 's assets or a reorganization, merger or consolidation transaction which results in the holders of the Corporation's capital stock prior to the transaction owning less than fifty percent (50%) of the voting power of the Corporation' s capital stock after the transaction, (ii) alter or change the rights, preferences, or privileges of the Series E Convertible Preferred Stock, (iii) increase or decrease the numb er of authorized shares of Series E Convertible Preferred Stock, (iv) issue any shares of Series E Convertible Preferred Stock other than pursuant to the Share Exchange Agreement or (v) authorize the issuance of securities having a preference over or on par with the Series E Convertible Preferred Stock,
9. Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at its principal place of business, attention: Isaac H. Sutton, CEO, e-mail address: isutton@corpuniverse.com or such other facsimile number, e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or address of such Holder appearing on the books of the Corporation. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section on a day that is not a business day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second business day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
10. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”). The Corporation and each Holder hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. The Corporation and each Holder hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. The Corporation and each Holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys' fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
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We further declare under penalty of perjury under the laws of the State of Delaware that the matters set forth in this certificate are true and correct of our own knowledge. The Corporation has caused this Certificate of Designation of Series E Convertible Preferred Stock to be duly executed by its Chief Executive Officer on December 31, 2020.
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By: Isaac H. Sutton
Its: Chief Executive Officer
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