Exhibit 3.11
METROSPACES, INC.
CERTIFICATE OF DESIGNATIONS
OF
SERIES D 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 on July 13, 2015, by the unanimous written consent of the directors
of METROSPACES, INC., a Delaware corporation (the “Corporation”), and that said resolution applies
to 400,000 shares of 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 $0.000001
per share, of the Corporation; and that the President or any Vice President of the Corporation be, and each of them 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. A total of 400,000 shares of preferred stock, par
value $0.000001 per share, of the Corporation is hereby designated as Series D PIK Convertible
Preferred Stock (the “Series D Stock”). |
| 2. | Rank.
Series D 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 $0.000001 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 D 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) | Pari
passu with the Series C PIK Convertible Preferred Stock of the Corporation and 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 D 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 D Stock shall be entitled to receive dividends at the
quarterly rate of $2.1875 per share and no more. Dividends on shares of Series D Stock
shall be fully cumulative, accruing, without interest, from the date of original issuance
of Series D 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 D 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 D Stock at the rate of 0.00021875 of a share of Series
D 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 D 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 D 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 D 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 D 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) | Redemption.
(i) After December 31, 2017, shares of Series D 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 D Stock will be redeemed at the Redemption Price, as hereinafter
defined. |
| (b) | The
redemption price for each Series D 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. |
| (c) | The
Corporation shall give notice of 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”).
An Optional Redemption Notice shall state (i) that the Corporation has elected to redeem
all or a portion of the outstanding shares of Series D Stock, as specified in such notice,
(ii) the number of shares of Series D Stock owned by the Holder that are being redeemed,
(iii) the Redemption Price, (iv) the Optional Redemption Date, (v) that unless the
Corporation defaults in the payment of the Redemption Price, all shares of Series D Stock
called for redemption shall cease to accrue dividends after t the Optional Redemption
Date and shall cease to be outstanding after such date and (vi) any other information
required by applicable law to be included therein. An Optional Redemption Notice shall
be irrevocable. On or after an Optional Redemption Date, (i) each Holder shall deliver
the certificate or certificates representing such Holder’s shares of Series D Stock
to be redeemed to the Corporation at the place specified in the Optional Redemption Notice
and (ii) immediately upon such delivery, the Corporation shall deliver the Redemption
Price for such shares of Series D Stock to such Holder. If less than all of a Holder’s
shares of Series D 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 D Stock. |
| (d) | 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 D 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 D 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. |
| (e) | 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. |
| (f) | In
every case of redemption of less than all of the outstanding shares of Series D Stock
pursuant to this Section 5, shares of Series D Stock to be redeemed shall be selected
pro rata on the basis of the number of shares of Series D 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) | From
and after February 1, 2016, 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 D Stock held by him into
shares of Common Stock, such that each share of Series D 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
D 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 D 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 D 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 D 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 D 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 D Preferred
Stock. The Corporation will, at the time of any partial conversion of the shares of Series
D 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 D 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
D Preferred Stock. The Corporation shall pay all unpaid dividends on the shares of Series
D 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 D 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 D 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 D 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 D 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 D 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 D 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 D 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 D 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 D 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 D Stock that are at any time redeemed or
converted pursuant to Section 5 or 6 and all shares of Series D 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 D 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 D 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 D 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 D 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 D 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 D Stock, except for (i) a
transaction in which all outstanding shares of Series D 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 D Stock in any way. |
| | The
Corporation shall not issue more than 200,000 shares of Series D Stock otherwise than
as PIK Dividends. |
| 10. | 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 D 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 seventh
day of September 2015.
METROSPACES, INC.
By: /s/ Oscar Brito
Oscar Brito
Senior Vice-President