Exhibit 3.10
METROSPACES,
INC.
CERTIFICATE
OF DESIGNATIONS
OF
SERIES C
PIK CONVERTIBLE PREFERRED STOCK
pursuant
to Section 151(g) of the
General
Corporation Law of the State of Delaware
The undersigned
DOES HEREBY CERTIFY that the following resolution was duly adopted May 29, 2015, by the unanimous written consent of the
directors of METROSPACES, INC. Delaware corporation (the “Corporation”), and that said resolution
applies to 100,000 shares the 10,000,000 shares of the authorized preferred stock, par value $0.000001 per share, of the Corporation:
RESOLVED,
that pursuant to the authority conferred on the Board of Directors of the Corporation (the “Board of Directors”)
by the Corporation’s Certificate of Incorporation, as amended, the issuance of a series of preferred stock, par value $0.00001
per share, of the Corporation; and that the President of the Corporation be, and he hereby is, authorized and directed to execute
and file with the Secretary of State of the State of Delaware a Certificate of Designations fixing the designations, powers, preferences
and rights of the shares of such series, and the qualifications, limitations or restrictions thereof (in addition to the designations,
powers, preferences and rights, and the qualifications, limitations or restrictions thereof, set forth in the Certificate of Incorporation
which may be applicable to the Corporation’s preferred stock) as follows:
| 1. | Number
of Shares; Designation; Stated Value. A total of 100,000 shares of
preferred stock, par value $0.00001 per share, of the Corporation is hereby designated
as Series C PIK Convertible Preferred Stock (the “Series C Stock”). |
| 2. | Rank.
Series C Stock shall, with respect to payment of dividends, redemption payments
and rights upon liquidation, dissolution or winding-up of the affairs of the Corporation,
rank: |
| (a) | | Senior and
prior to the common stock, par value $0.00001 per share, of the Corporation (the “Common Stock”) and
the Series B PIK Convertible Preferred Stock. The Common Stock and any other shares of the Corporation’s Capital Stock which
are junior to the Series C Stock with respect to the payment of dividends and with respect to redemption, payment and rights upon
liquidation, dissolution or winding-up of the affairs of the Corporation are hereinafter referred to as “Junior Stock.” |
| (b) | | Not less
than pari passu with any series of preferred stock which may in the future be issued by the Corporation. Any shares of
the Corporation’s Capital Stock which are senior to the Series C Stock with respect to the payment of dividends and with
respect to redemption, payment and rights upon liquidation, dissolution or winding-up of the affairs of the Corporation are hereinafter
referred to as “Senior Stock.” |
| 3. | Dividends.
The Holders of shares of Series C Stock shall be entitled to receive dividends at
the quarterly rate of $2.1875 per share and no more. Dividends on shares of Series C
Stock shall be fully cumulative, accruing, without interest, from the date of original
issuance of Series C Stock through the date of redemption or conversion thereof, and
to the extent so declared by the Board of Directors shall be payable in arrears on March
31, June 30, September 30 and December 31 of each year, except that if such date is not
a Business Day, the dividend shall be payable on the first immediately succeeding Business
Day (each such date being hereinafter referred to as a “Dividend Payment
Date”). Until December 31, 2019 (the “PIK Termination Date”),
dividends on shares of Series C Stock shall be paid, at the Corporation’s option,
(a) in fully paid and nonassessable shares of Common Stock (such dividends paid in such
form being herein called “PIK Dividends”) or (b) in cash only
out of funds legally available therefor. PIK Dividends shall be paid by issuing additional
fully paid and nonassessable shares of Series C Stock at the rate of 0.00021875 of a
share of Series C Stock for each $1.00 not paid in cash and shall for all purposes be
deemed to have been issued on the respective dates on which cash dividends, if declared,
would have been payable, notwithstanding any later date on which certificates representing
PIK Dividends shall have been issued. |
| | Each dividend
shall be paid to the Holders of record as they appear on the stock register of the Corporation on the record date, which shall
be not less than 10 nor more than 30 days preceding the applicable Dividend Payment Date, as shall be fixed by the Board of Directors.
Dividends payable on each Dividend Payment Date with respect to shares that have been issued for less than a full calendar quarter
shall be computed on the basis of a 360-day year of twelve 30-day months and rounded up to the nearest cent. Dividends on account
of arrearages for any past Dividend Payment Date may be declared and paid at any time, without reference to any scheduled Dividend
Payment Date, to Holders of record on such date, not exceeding 30 days preceding the payment date thereof, as may be fixed by
the Board of Directors. Dividends shall accrue regardless of whether the Corporation has earnings, whether there are funds legally
available therefor and/or whether declared. No interest shall be payable with respect to any dividend payment that may be in arrears.
Holders of shares of Series C Stock called for redemption between the close of business on a dividend payment record date and
the close of business on the corresponding dividend payment date shall, in lieu of receiving such dividend on the Dividend Payment
Date fixed therefor, receive such dividend payment on the date fixed for redemption together with all other accrued and unpaid
dividends to the date fixed for redemption. The Holders shall not be entitled to any dividends other than the dividends provided
for in this Section 3. |
| | | |
| 4. | Liquidation.
(a) The liquidation value of each share of Series C Stock, in case of the voluntary
or involuntary liquidation, dissolution or winding-up of the affairs of the Corporation,
shall be an amount equal to $100.00, subject to adjustment in the event of a stock split,
stock dividend or similar event applicable to Series C Stock (the “Liquidation
Value”), plus an amount equal to the value of dividends accrued and unpaid
thereon (which shall be determined as if the Corporation had elected to pay such dividends
in cash, notwithstanding that the Corporation had elected to pay them in the form of
PIK Dividends), whether or not declared, to the payment date. |
| | | |
| (b) | In
the event of any voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation (a “Liquidation Event”), the Holders (i) shall
not be entitled to receive the Liquidation Value of the shares held by them until the
liquidation value of all Senior Stock shall have been paid in full, and (ii) shall be
entitled to receive the full Liquidation Value of the shares of the Series C Stock held
by them in preference to and in priority over any distributions upon the Junior Stock.
Upon payment in full of the Liquidation Value to which the Holders are entitled, the
Holders will not be entitled to any further participation in any distribution of assets
of or by the Corporation. |
| | | |
| (c) | The
Corporation shall, no later than the date on which a Liquidation Event occurs or is publicly
announced, give to each Holder at his address as it appears in the records of the Corporation
written notice of any Liquidation Event, stating the payment date or dates when and the
place or places where the amounts distributable in such circumstances shall be payable. |
| (d) | Whenever
the distribution provided for in this Section 4 shall be payable in securities or property
other than cash, the value of such distribution shall be the fair market value of such
securities or other property as determined in good faith by the Board of Directors. |
| (a) | Optional
Redemption. (i) After December 31, 2017, shares of Series C Stock will be redeemable
at the option of the Corporation, in whole or in part (an “Optional Redemption”),
from and after the time that the closing price of the Common Stock on each Trading Day
occurring during any period of twenty (20) consecutive Trading Days equals or exceeds
$0.001 per share (subject to adjustment for stock splits, stock dividends and similar
events). Each share of Series C Stock will be redeemed at the Redemption Price, as hereinafter
defined. |
| (b) | Mandatory
Redemption. On the following dates, the Corporation shall redeem the following
percentages of the outstanding Series C Stock (a “Mandatory Redemption”): |
| | Each of
such dates is referred to as a “Mandatory Redemption Date.” |
| | December
31, 2022 | | |
| 20 |
| | December
31, 2023 | | |
| 25 |
| | December
31, 2024 | | |
| 33-1/3% |
| | December
31, 2025 | | |
| 50 |
| | December
31, 2026 | | |
| 100 |
| | Each share
of Series C Stock will be redeemed at the Redemption Price, as hereinafter defined. |
| | In the event
that the Corporation fails, in whole or in part, to redeem the requisite number of shares of Series C Stock on the first four
of the Mandatory Redemption Dates, a Holder of shares of Series C Stock that have not been redeemed shall elect and give notice
to the Corporation of such election, within 30 days after any such Mandatory Redemption Date, either (i) to exercise his remedies
under the Pledge Agreement (as hereinafter defined”) with respect to some or all of such shares, in which event, such shares
shall be redeemed as of such Mandatory Redemption Date, or (ii) to have the balance of such shares included in the Series C Shares
to be redeemed on the succeeding Mandatory Redemption Dates, or in the case of such failure on the Mandatory Redemption Date to
occur on December 31, 2025, on the Mandatory Redemption Date to occur on December 31, 2026 (a “Clause (ii) Election”),
in which event, he shall have waived any remedy that he may have with respect to such failure. In the event that notice of such
election is not timely given, the holder shall be deemed to have made a Clause (ii) Election. Shares of Series C Stock as to which
a Clause (ii) Election has been made or deemed to be made shall not have the right to be redeemed in preference to any other shares
of Series C Stock, but shall be subject to the apportionment set forth in the preceding paragraph. |
| (c) | The
redemption price for each Series C Share will be payable in cash and be equal to the
Liquidation Value, together with an amount equal to the value of the dividends accrued
and unpaid thereon (which shall be determined as if the Corporation had elected to pay
such dividends in cash, notwithstanding that the Corporation had elected to pay them
in the form of PIK Dividends), whether or not earned or declared or whether funds are
legally available for the payment thereof, through the Redemption Date (the “Redemption
Price”). The aggregate payment to each Holder to be redeemed shall be rounded
up to the nearest cent. |
| (d) | The
Corporation shall give notice of a Mandatory Redemption or an Optional Redemption (a
“Redemption Notice”) to each Holder at his registered address
not less than 30 days prior to the date fixed in such notice for the Optional Redemption
(the “Optional Redemption Date”) and in the case of a Mandatory
Redemption, not less than 30 days prior to the Mandatory Redemption Date. A Redemption
Notice in respect of an Optional Redemption (an “Optional Redemption Notice”)
shall state (i) that the Corporation has elected to redeem all or a portion of the outstanding
shares of Series C Stock, as specified in such notice, (ii) the number of shares of Series
C Stock owned by the Holder that are being redeemed, (iii) the Redemption Price and (iv)
the Optional Redemption Date. A Redemption Notice in respect of a Mandatory Redemption
shall state (i) the number of shares of Series C Stock that the Corporation is required
to redeem on the Mandatory Redemption Date and the number of shares of Series C Stock
that the Corporation is redeeming on the Mandatory Redemption Date (the “Actual
Mandatory Redemption”, (ii) the number of shares of Series C Stock owned
by the Holder that are being redeemed, (iii) the Redemption Price and (iv) the Mandatory
Redemption Date. Every Redemption Notice shall also state that (i) unless the Corporation
defaults in the payment of the Redemption Price, all shares of Series C Stock called
for redemption shall cease to accrue dividends after the Mandatory Redemption Date or
the Optional Redemption Date, as the case may be, and shall cease to be outstanding after
such date, and (ii) any other information required by applicable law to be included
therein. An Optional Redemption Notice, once given by the Corporation, shall be irrevocable
and a Mandatory Redemption Notice, once given by the Corporation, shall be irrevocable
in respect of the Actual Mandatory Redemption. On or after a Redemption Date, (i) each
Holder shall deliver the certificate or certificates representing such Holder’s
shares of Series C Stock to be redeemed to the Corporation at the place specified in
the Redemption Notice and (ii) immediately upon such delivery, the Corporation shall
deliver the Redemption Price for such shares of Series C Stock to such Holder. If less
than all of a Holder’s shares of Series C Stock represented by any such certificate
are redeemed, a new certificate shall be issued at the cost of the Corporation to such
Holder representing such Holder’s unredeemed shares of Series C Stock. |
| (e) | If
a Redemption Notice has been given pursuant to this Section 5 and if, on or before the
Redemption Date, the funds necessary for such redemption shall have been set aside by
the Corporation, separate and apart from its other funds, in trust for the pro rata
benefit of the Holders of shares of Series C Stock so called for redemption, then,
notwithstanding that any certificates for such shares have not been surrendered for cancellation,
dividends shall cease to accrue on the Redemption Date on shares of Series C Stock to
be redeemed, and at the close of business on the Redemption Date, the Holders of such
shares shall cease to be stockholders with respect to those shares, shall have no interest
in or claims against the Corporation by virtue thereof and shall have no voting or other
rights with respect thereto, except the right to receive the Redemption Price upon surrender
of their certificates, and the shares evidenced thereby shall no longer be outstanding.
Any moneys so set aside by the Corporation and unclaimed at the end of two (2) years
from the redemption date shall revert to the Corporation, after which reversion the Holders
of such shares so called for redemption shall look only to the Corporation for the payment
of the redemption price. Any interest accrued on funds so deposited shall be paid to
the Corporation from time to time. |
| (f) | If
an Optional Redemption Notice has been given pursuant to this Section 5, and any Holder
shall, prior to the close of business on the Optional Redemption Date, give written notice
to the Corporation pursuant to Section 6 below of the conversion of any or all of the
shares to be redeemed held by the Holder, such redemption shall not become effective
as to such shares to be converted and such conversion shall become effective as provided
in Section 6 below, whereupon any funds deposited by the Corporation, or on its behalf,
with a payment agent or set aside by the Corporation, separate and apart from its other
funds, in trust for the redemption of such shares shall (subject to any right of the
holder of such shares to receive the dividend payable thereon as provided in Section
6) immediately upon such conversion be returned to the Corporation or, if then held in
trust by the Corporation, shall be discharged from the trust. |
| | | |
| (g) | In
every case of redemption of less than all of the outstanding shares of Series C Stock
pursuant to this Section 5, shares of Series C Stock to be redeemed shall be selected
pro rata on the basis of the number of shares of Series C Stock owned by each
Holder as of the date on which the Redemption Notice is given to the Holders, provided
that only whole shares shall be selected for redemption. |
| (a) | Each
Holder shall have the right, at any time and from time to time to convert all or any
portion of the shares of Series C Stock held by him into shares of Common Stock, such
that each share of Series C Stock that such Holder elects so to convert shall be converted
into a number of shares of Common Stock determined by dividing the Liquidation Value
by the Conversion Price. |
| (b) | As
promptly as practicable after the surrender (as herein provided) of shares of Series
C Preferred Stock for conversion, together with a notice of conversion in the form prescribed
by subsection (l) of this section 6 (a “Conversion Notice”),
the Corporation shall deliver or cause to be delivered to or upon the written order of
the Holder, certificates representing the number of fully paid and nonassessable shares
of Common Stock into which the shares of Series C Preferred Stock shall have been converted.
Subject to the following provisions of this Subsection (b), such conversion shall be
deemed to have been made at the close of business on the date on which such shares of
Series C Preferred Stock shall have been surrendered for conversion together with a Conversion
Notice (the “Conversion Date”), and the rights of the Holder with respect
to his shares of Series C Preferred Stock as such (to the extent that shares thereof
are converted) shall cease at such time and the person or persons entitled to receive
shares of Common Stock upon conversion of the shares of Series C Preferred Stock shall
be treated for all purposes as having become the record holder or holders of such shares
of Common Stock at such time; provided, however, that no such surrender
on any date when the stock transfer books of the Corporation shall be closed shall be
effective to constitute the person or persons entitled to receive shares of Common Stock
upon such conversion as the record holder or holders of such shares of Common Stock on
such date, but such surrender, together with a Conversion Notice, shall be effective
to constitute the person or persons entitled to receive such shares of Common Stock as
the record holder or holders thereof for all purposes at the close of business on the
next succeeding day on which such stock transfer books are open or the Corporation is
required to convert the shares of Series C Preferred Stock. The Corporation will, at
the time of any partial conversion of the shares of Series C Preferred Stock, upon request
of the Holder, acknowledge in writing its continuing obligation to the Holder in respect
of any rights to which he shall continue to be entitled under the shares of Series C
Preferred Stock as in effect after such conversion, provided that, the
failure of the Holder to make any such request shall not affect the continuing obligation
of the Corporation to the Holder in respect of such rights. |
| (c) | If
the day on which conversion rights are exercised shall not be a business day at the palace
where notice of conversion is to be given, then such conversion rights will be deemed
to be exercised on the next succeeding day which is a Business Day in such place. |
| (d) | No
adjustment in respect of dividends shall be made upon conversion of the shares of Series
C Preferred Stock. The Corporation shall pay all unpaid dividends on the shares of Series
C Preferred Stock so converted which has accrued to (but not including) the date upon
which such conversion is deemed to have been effected in accordance with this Subsection
(b). |
| (e) | The
Conversion Price for the conversion of shares of Series C Preferred Stock into shares
of Common Stock shall be ninety percent (90%) of the Current Market Price. As used in
the previous sentence, the term “Current Market Price” means the average
of the daily closing price for a share of Common Stock for the three (3) consecutive
trading days ending on the trading day immediately prior to the day on which a shares
of Series C Preferred Stock are surrendered for conversion, together a Conversion Notice.
A trading day shall be any day on which the Common Stock is able to be traded on an organized
securities market or trading system in the United States of America, whether or not the
Common Stock actually is traded on such day. The closing price for each day shall be
the last reported sales price, or, in case no reported sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case, as quoted
on the principal United States market for the Common Stock, as determined by the Board
of Directors of the Corporation or if, in the judgment of the Board of Directors of the
Corporation, there exists no principal United States market for the Common Stock, then
as determined by the Board of Directors of the Corporation. |
| (f) | If
the Corporation shall at any time consolidate or merge with or into another corporation,
the Holder shall thereafter be entitled to receive, upon conversion, the securities or
property to which a holder of the number of Shares then deliverable upon such conversion
would have been entitled upon such consolidation or merger. Corporation shall take such
steps in connection with such consolidation or merger as may be necessary to assure the
Holder that the provisions of this Agreement shall thereafter be applicable, as nearly
as reasonably may be in relation to any securities or property thereafter deliverable
upon the conversion of this Convertible Promissory Note including, but not limited to,
obtaining a written acknowledgement from the continuing corporation or other appropriate
corporation of its obligation to supply such securities or property upon such conversion.
The sale of all or substantially all of the assets of Corporation shall be deemed a consolidation
or merger for the foregoing purposes. |
| (g) | The
issuance of certificates for shares of Common Stock upon the conversion of shares of
Series C Preferred Stock shall be made without charge to the Holder for any issue or
stamp tax in respect of the issuance of such certificates, and such certificates shall
be issued in the respective names of, or in such names as may be directed by, the holder
of the shares of Series C Preferred Stock; provided, however, that the Corporation shall
not be required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of any such certificate in a name other than that of the
Holder and the Corporation shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof shall have paid
to the Corporation the amount of such tax or shall have established to the satisfaction
of the Corporation that such tax has been paid. |
| (h) | No
fractional shares or scrip representing fractional shares of Common Stock shall be issued
upon the conversion of Series C Stock nor shall any payment shall be made for any fractional
shares of Common Stock, but in lieu thereof, each such fractional share shall be rounded
up to the next full share. If more than one share of Series C Stock shall be surrendered
for conversion at one time by the same Holder, the number of full shares that shall be
issuable upon conversion thereof shall be computed on the basis of the aggregate number
of shares of Series C Stock so surrendered. |
| (i) | The
written determination of the Board of Directors shall be conclusive as to the correctness
of any computation made under this Section 6 in the absence of manifest error. |
| (j) | If
in any case a state of facts occurs wherein in the opinion of the Board of Directors
the other provisions of this Section 6 are not strictly applicable, or, if strictly applicable,
would not fairly protect the rights of the Holders in the event of conversion in accordance
with the essential intent and principles of such provisions, the Board of Directors may
make an adjustment in accordance with such essential intent and principles so as to protect
such rights, which adjustment shall be final. |
| (k) | Notwithstanding
anything to the contrary in this Section 6, the Holder may not exercise his conversion
rights to the extent that the sum of (A) the number of shares of Common Stock then
beneficially owned by him and his affiliates and (B) the number of Shares issuable upon
delivery a Conversion Notice would result in beneficial ownership by the Holder and his
affiliates of more than 2.99% of the outstanding shares of Common Stock (the “Limit”).
A Conversion Notice relating to a number of shares of Common that, upon issuance, would
cause such sum to exceed the Limit shall be deemed to relate to the largest number of
such shares issuable to Holder without exceeding the Limit. Such beneficial ownership
shall be determined in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended, and Regulation 13d-3 thereunder. For purposes of this section 6(k),
the Holder and the persons who acquire shares of Series C Stock from him shall be deemed
to be a single Holder. |
| (l) | A
notice of the election by a Holder to convert any or all of his shares into Common Stock
shall be addressed to the Corporation and shall be in the following form: |
| | The undersigned
hereby elects to convert ________ ( ) shares of Series C PIK Convertible Preferred Stock of Metrospaces, Inc. (the “Preferred
Stock”), represented by stock certificate No(s). , into shares of its common stock according to the terms and
conditions of the Certificate of Designations relating to the Preferred Stock, as of the date written below. |
| | Such notice
shall also set forth the name and address of such Holder and such state and federal tax information as the Corporation or its
transfer agent are required by law or regulation to obtain and shall be signed and dated by him. |
| | | |
| 7. | Status
of Shares. All shares of Series C Stock that are at any time redeemed
or converted pursuant to Section 5 or 6 and all shares of Series C Stock that are otherwise
reacquired by the Corporation and subsequently canceled by the Board of Directors, shall
not be subject to reissuance as shares of Series C Stock, but shall be restored to the
status of authorized but undesignated shares of preferred stock. |
| | | |
| 8. | Voting.
The Holders shall have the following voting rights and no others: |
| | | |
| (a) | Each
Holder of shares of Series C Stock shall have the right to cast at a meeting of stockholders
or by consent a number of votes equal to the number of shares held by him, divided by
the Current Market Price on the record date for such meeting or on the date on which
he signs such consent, rounded up to the next full vote. |
| | | |
| (b) | The
Holders shall have the right, voting separately as a class, to cast one vote for each
share of Series C Stock held by them on any question or matter (i) on which they are
entitled by the GCL to vote separately as a series, irrespective of whether they also
entitled are entitled to vote on such question or matter pursuant to Subsection (a) of
this section 8, (ii) which, if approved, would result in the simultaneous existence of
more than one class or series of the Corporation’s common stock, (iii) the liquidation
of the Corporation, or (iv) a reclassification of the Common Stock or a consolidation
of the Corporation with, or merger of the Corporation with, any other corporation, other
than the merger of a wholly owned subsidiary of the Corporation with and into the Corporation. |
| | | |
| 9. | Restrictions
and Limitations. So long as any shares of Series C Stock remain outstanding,
the Corporation, shall not, without the vote or written consent by the Holders of a majority
of the outstanding shares of Series C Stock, voting together as a single class: |
| | | |
| (a) | redeem,
purchase or otherwise acquire for value (or pay into or set aside for a sinking or other
analogous fund for such purpose) any share or shares of Series C Stock, except for (i)
a transaction in which all outstanding shares of Series C Stock are concurrently purchased
or otherwise acquired other than by redemption, (ii) conversion into or exchange for
Junior Stock or (iii) redemption as a whole or in part in accordance with Section 5; |
| | | |
| (b) | redeem,
purchase or otherwise acquire (or pay into or set aside for a sinking or other analogous
fund for such purpose) any shares of Junior Stock except by conversion into or exchange
for other Junior Stock; or |
| (c) | alter,
modify or amend the terms of the Series C Stock in any way. |
The Corporation
shall not issue more than 200,000 shares of Series C Stock otherwise than as PIK Dividends.
| 10. | Pledge
Agreement. The obligation of the Corporation to pay the Redemption
Price in respect of each Mandatory Redemption on the applicable Mandatory Redemption
Date is secured by a Pledge Agreement, dated as of May 29, 2015, by and between the Corporation
and MRT Consulting, S.A. |
| 11. | Certain
Definitions. As used in this Certificate of Designations, the following terms shall
have the following respective meanings: |
| | “Business
Day” shall mean any day except a Saturday, Sunday or day on which banking institutions are legally authorized to
close in Miami, Florida. |
| | “Capital
Stock” means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents
of or interests in the common stock or preferred stock of such person or entity, including, without limitation, partnership and
membership interests. |
| | “GCL”
means the General Corporation Law of the State of Delaware. |
| | “Holder”
means any holder of shares of Series C Stock, all of such holders together being the “Holders.” |
IN WITNESS
WHEREOF, the Corporation has caused this Certificate to be duly executed on its behalf by its Senior Vice President, thereunto
duly authorized this twenty-ninth day of May 2015.
METROSPACES,
INC.
By: /s/
Oscar Brito
Oscar Brito
Senior Vice-President
