Attached files
Exhibit 3.1
AMENDMENT TO THE
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF THE SERIES H-4 CONVERTIBLE PREFERRED STOCK OF DROPCAR,
INC.
This Amendment to the Certificate of Designation
of Preferences, Rights and Limitations of the Series H-4
Convertible Preferred Stock (this “Amendment”) is dated as of December 20,
2019.
WHEREAS, the board of directors
(“Board of
Directors”) of DropCar,
Inc., a Delaware corporation (the “Company”), pursuant to authority granted to it by
the certificate of incorporation of the Company, has previously
fixed the rights, preferences, restrictions and other matters
relating to a series of the Company’s preferred stock,
consisting of 30,000 authorized shares of preferred stock,
classified as Series H-4 Convertible Preferred Stock (the
“Series H-4 Preferred
Stock”) and the
Certificate of Designations, Preferences and Rights of the Series
H-4 Convertible Preferred Stock (the “Certificate of
Designation”) was filed
with the Secretary of State of the State of Delaware on March 8,
2018, evidencing such terms;
WHEREAS, the holders (the
“Holders”) are the record and beneficial owners of
certain shares of Series H-4 Preferred Stock, issued pursuant to
that certain (a) Securities Purchase Agreement, dated as of March
8, 2018, by and between the Company and the purchasers party
thereto and (b) the Certificate of Designation;
WHEREAS, pursuant to Section 17(b) of the
Certificate of Designation, any of the rights, powers, preferences
and other terms of the Series H-4 Preferred Stock may be waived or
amended on behalf of all holders of Series H-4 Preferred Stock by
the affirmative written consent or vote of the holders of at least
two-thirds of the shares of Series H-4 Preferred Stock then
outstanding (the “Required
Holders”);
WHEREAS, the Holders constitute the Required
Holders pursuant to the Certificate of Designation and have
consented in writing, in accordance with Section 228 of the General
Corporation Law of the State of Delaware (the
“DGCL”), on December 20, 2019, to this Amendment
on the terms set forth herein;
WHEREAS,
the Board of Directors has duly adopted resolutions proposing to
adopt this Amendment and declaring this Amendment to be advisable
and in the best interest of the Company and its stockholders;
and
WHEREAS, the Holders have agreed to convert their
shares of Series H-4 Preferred Stock into shares of common stock,
par value $0.0001 per share, of the Company (the
“Common Stock”) pursuant to Section 3 of the Certificate
of Designation, as amended by this Amendment, upon receipt of
Shareholder Approval (as defined below).
NOW,
THEREFORE, this Amendment has been duly adopted in accordance with
Section 242 of the DGCL and has been executed by a duly authorized
officer of the Company as of the date first set forth above to
amend the terms of the Certificate of Designation as
follows:
1. Capitalized
Terms. Unless otherwise
specified in this Amendment, all terms herein shall have the same
meanings ascribed to them in the Certificate of
Designation.
2. Amendment to Section
18(h). Section 18(h) of the
Certificate of Designation is hereby amended and restated in its
entirety as follows:
“Conversion
Price” shall initially
mean, with respect to each Preferred Share, as of any conversion
date or other applicable date of determination, $2.355, subject to
adjustment as provided herein, but shall be amended to be equal to
$0.50, upon receipt of shareholder approval pursuant to Nasdaq
Listing Rule 5635(a) (“Shareholder
Approval”). Such
Conversion Price, and the rate at which the Preferred Shares may be
converted into shares of Common Stock, shall be subject to
adjustment as provided herein. For the avoidance of doubt, any
adjustments made to the Conversion Price after December 20, 2019
but prior to receipt of Shareholder Approval shall be made
equitably and proportionately to the Conversion Price following
Shareholder Approval.”
3. Amendment to Section
3(f). Section 3(f) of the
Certificate of Designation is hereby amended and restated in its
entirety to add a new Section 3(f) as follows:
“3(f) Each
Preferred Share shall, automatically and without further action on
the part of any holder thereof, be converted effective upon,
subject to, and concurrently with, the receipt of the Shareholder
Approval, into a number of fully paid and nonassessable shares of
Common Stock calculated based on the then-applicable Conversion
Rate (after giving effect to the amendment thereto occurring upon
receipt of the Shareholder Approval as provided in Section 18(h)).
Each holder of any Preferred Shares converted pursuant to this
Section 3(f) shall deliver to the Company during regular business
hours at the office of any transfer agent of the Company for the
Preferred Shares, or at such other place as may be designated by
the Company, the certificate or certificates for the shares so
converted, duly endorsed or assigned in blank or to the Company. As
promptly as practicable thereafter, the Company shall issue and
deliver to such holder, at the place designated by such holder, a
certificate or certificates for the number of full shares of the
Common Stock to be issued and such holder shall be deemed to have
become a stockholder of record of Common Stock on the date of
receipt of the Shareholder Approval unless the transfer books of
the Company are closed on that date, in which event he, she or it
shall be deemed to have become a stockholder of record of Common
Stock on the next succeeding date on which the transfer books are
open.”
4. No Other
Amendment. Except for the
matters set forth in this Amendment, all other terms of the
Certificate of Designation and the Preferred Shares shall remain
unchanged and in full force and effect.
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IN
WITNESS WHEREOF, each of the parties has caused this Amendment to
be executed by its duly authorized representatives.
DROPCAR, INC.
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By:
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/s/
Joshua Silverman
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Name:
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Joshua
Silverman
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Title:
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Chairman
of the Board
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