CERTIFICATE OFAMENDMENT
OF
THIRDAMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HANCOCK JAFFE LABORATORIES,INC.
aDelaware corporation
Hancock Jaffe Laboratories, Inc.,aDelaware corporation organized and existing under and byvirtueofthe General Corporation Lawof theStateofDelaware (the “Corporation”), does hereby certify:
FIRST: The BoardofDirectorsofthe Corporation duly adoptedresolutions proposing anddeclaring advisable thefollowing amendments to theThird Amended andRestated CertificateofIncorporation ofthe Corporation filed with the Delaware SecretaryofState onJune 6,2017 (the “Certificate ofIncorporation”), directing that said amendment besubmitted to thestockholders ofthe Corporationforconsideration. The resolutions setting forth the proposed amendments are asfollows:
RESOLVED FURTHER, thatafter the first sentence inArticleFOURTH ofthe CertificateofIncorporation, the following sentencesbeaddedto read asfollows:
“Uponthefilingandeffectiveness (the “Effective Time”) ofthis Certificate ofAmendment totheThird Amended andRestated CertificateofIncorporation with the Delaware SecretaryofState, every two (2)issued andoutstanding sharesof Common Stock(including each share oftreasury stock, ifany) shall without further action by thisCorporationor theholder thereof bereclassifiedas andreduced toone (1)shareof Common Stock (the“Reverse Stock Split”). Thenumber ofauthorized shares ofCommon stock of theCorporationandthe par valueof theCommonStockshall remain as set forth inthisThirdAmended andRestated CertificateofIncorporation, as amended.”
RESOLVED FURTHER, that paragraph (C)(1)ofArticle FOURTH of theCertificateofIncorporationbeamended in its entirety toread as follows:
“1.Dividends. From andafter the date of theissuanceof anysharesofSeries APreferred Stock, dividendsat therate perannum ofeight percent (8%) of theoriginal purchase priceofthe Series APreferred Stock from theCorporation shall accrue on suchsharesofSeries APreferred Stock (subjecttoappropriate adjustment in theeventof anystock dividend, stock split, combinationorother similar recapitalization with respect tothe Series APreferred Stock)(the“Accruing Dividends”), payable in cashorinshares ofSeries APreferred Stock orCommon Stock at theoption ofthe Corporation. Accruing Dividends shall accrue from day today, whetheror notdeclared, and shall becumulative;provided,however, that except asset forth in thefollowing sentence ofthisSection 1or inSection2.1,Section 4.1.1orSection6, suchAccruing Dividends shall bepayableonlywhen, as, andif declared by theBoardofDirectorsand theCorporation shall beunder noobligation to paysuch Accruing Dividends.TheCorporation shall notdeclare, pay orset aside anydividends onsharesof anyother class orseriesofcapital stock ofthe Corporation (other than dividends onsharesof CommonStock payable insharesof Common Stockprovided such isalso paid simultaneously to allholders ofthe Series APreferred Stock on an“as converted basis”) unless (in addition to the obtaining of anyconsents required elsewhere inthe CertificateofIncorporation) theholders of theSeriesAPreferred Stock thenoutstanding shalleachfirst orsimultaneously receive,adividend oneach outstanding shareofSeries APreferred Stock in anamountatleast equal tothe greater of(i) theamountof theaggregate Accruing Dividends then accrued on suchshare ofSeries APreferred Stockand not previously paid and(ii)(A) in thecaseof adividend onCommon Stock or anyclass orseries that is convertibleintoCommonStock, that dividend per shareofSeries APreferredStockas would equal theproduct of (1)the dividend payable on eachshare ofsuch class orseries determined, ifapplicable, as ifall shares of suchclassorseries had beenconverted intoCommon Stock and (2) thenumber of shares ofCommonStockissuable uponconversionofashare ofSeriesAPreferred Stock, in eachcase calculatedonthe record date fordeterminationofholders entitled toreceive suchdividend or(B) inthe case of adividend on anyclass orseriesthat isnot convertible intoCommonStock, at a rateper share ofSeries APreferredStockdetermined by (1) dividing theamountof thedividend payable oneach shareof suchclass orseries ofcapital stock by theoriginal issuanceprice ofsuch class orseries ofcapital stock (subject toappropriate adjustment in theeventof anystock dividend, stock split,combinationorother similar recapitalization with respect to suchclassorseries)and(2) multiplying such fraction by anamount equal to theSeries AOriginal Issue Price (as defined below); provided that ifthe Corporation declares,paysorsets aside,onthesame date, adividendonshares ofmore than oneclassorseries ofcapital stock of theCorporation, thedividend payable tothe holders ofSeries APreferred Stock pursuant tothis Section 1shallbecalculated based uponthe dividendonthe classorseriesofcapital stock that wouldresultin the highest Series APreferred Stock dividend.The“Series AOriginal Issue Price” shall mean $5.00 pershare, subject toappropriate adjustment intheevent of anystock dividend, stock split, combination orother similar recapitalization with respect to theSeriesAPreferred Stock.”
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RESOLVED FURTHER, that paragraph (C)(4.1.1)ofArticle FOURTH oftheCertificateofIncorporationbeamended in its entirety toread as follows:
“4.1.1Conversion Ratio. Each shareofSeries APreferred Stock shall beconvertible, at the option of theholder thereof, at anytimeand fromtime totime, andwithout the payment ofadditional consideration by theholder thereof, into such numberoffully paid andnon-assessable shares ofCommon Stock as isdetermined by dividing theSeriesAOriginal Issue Price, plusall unpaid Accruing Dividends, by theSeries AConversion Price (asdefined below) ineffect atthetime ofconversion except that ifaconversion is theresult of aIPOMandatory Conversion (asdefinedinSection 5.1 hereof) then theSeriesAConversion Price shallbethe lower of(i) $4.30(subject toappropriate adjustment in theeventof any stockdividend, stock split,combinationorother similar recapitalization butnot subject toadjustment for the Reverse Stock Split), and(ii) theSeries AConversion Price, inboth cases asadjusted pursuant toSection 4.4. The “Series AConversion Price” shall initially be equal to theSeries AOriginal Issue Price. Such initial Series AConversion Price, and therateatwhich sharesofSeriesAPreferred Stock may beconverted intoshares ofCommonStock,shallbesubject toadjustmentasprovided below.”
RESOLVED FURTHER, that paragraph (C)(4.4.1(d))ofArticleFOURTH ofthe CertificateofIncorporationbeamended to add a newsubsection (ix) toreadasfollows:
“(ix) sharesofCommonStock issuedupon the Corporation’s initial underwritten public offering under theSecuritiesAct of 1933, asamended.”
RESOLVED FURTHER, that paragraph (C)(6)ofArticle FOURTH of theCertificateofIncorporationbeamended to amend thelast sentenceofthe paragraph toreadasfollows:
“Such Principal Cash Distribution shallsurviveanygeneral distributions, dividend payments, conversion ofSeries APreferredStock toCommonStock, sale,transfer and/or dispositionof anySeries APreferred Stock, changes in the capital stock structureofCorporation from thetime oforiginal purchase ofSeries APreferred Stock; by classorotherwise, merger, amalgamation, reorganization, consolidation, funding orany othertransaction involving anyclassofstockof theCorporation; provided, however, that thePrincipal Cash Distribution shall terminate upon anIPOMandatory Conversion.”
SECOND:That thereafter, the holdersofthe necessary number ofsharesofcapital stock of theCorporationgavetheir written consent infavorofthe foregoing amendments in accordance with theprovisionsofSection 228ofthe Delaware General Corporation Law.
THIRD:That said amendments were duly adopted in accordance with the provisionsofSection 242 of theDelawareGeneral Corporation Law ofthe State ofDelaware.
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IN WITNESS WHEREOF, HancockJaffeLaboratories, Inc. has causedthis CertificateofAmendment to besigned this 14thday ofDecember, 2017.
| /s/ Benedict Broennimann, M.D. | |
| Co-Chief Executive Officer | |
| /s/ Steven A. Cantor | |
| Co-Chief Executive Officer |
