Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - VistaGen Therapeutics, Inc. | vistagen_8k.htm |
| EX-5.1 - OPINION OF WOODBURN AND WEDGE. - VistaGen Therapeutics, Inc. | ex5-1.htm |
| EX-99.1 - PRESS RELEASE - VistaGen Therapeutics, Inc. | ex99-1.htm |
| EX-1.1 - UNDERWRITING AGREEMENT - VistaGen Therapeutics, Inc. | ex1-1.htm |
| EX-99 - PRESS RELEASE - VistaGen Therapeutics, Inc. | ex99-2.htm |
Exhibit 3.1
CERTIFICATE OF DESIGNATION OF THE RELATIVE RIGHTS AND
PREFERENCES
OF THE
SERIES D CONVERTIBLE PREFERRED STOCK
OF
VISTAGEN THERAPEUTICS, INC.
The
undersigned, Shawn Singh, does hereby certify that:
1. He is the Chief
Executive Officer of VistaGen Therapeutics, Inc., a Nevada
corporation (the “Company”).
2. The Company,
pursuant to Article V of its Restated and Amended Articles of
Incorporation (the “Articles of
Incorporation”) is authorized to issue 10,000,000
shares of preferred stock, par value $0.001 per share, of which
7,500,000 shares have been previously designated.
3. The following
resolution was duly adopted by the board of directors of the
Company (the “Board of
Directors”), or by a duly authorized committee
thereof, in accordance with the provisions of Section 78.195 of the
Nevada Revised Statutes.
4. Pursuant to the
authority conferred upon the Board of Directors of the Company by
the Articles of Incorporation, the following resolution creating a
series of Series D Convertible Preferred Stock, was duly adopted on
December 17, 2020:
WHEREAS, the Articles of Incorporation
provide for the Preferred Stock issuable from time to time in one
or more series;
WHEREAS, the Board of Directors is
authorized to fix the dividend rights, dividend rate, voting
rights, conversion rights, rights and terms of redemption and
liquidation preference of any wholly unissued series of Preferred
Stock and the number of shares constituting any series and the
designation thereof, or any of them; and
WHEREAS, it is the desire of the Board
of Directors, pursuant to its authority as aforesaid, to fix the
rights, preferences, restrictions and other matters relating to a
new series of the Preferred Stock, which consist of 2,000,000
shares of Preferred Stock, which the Company has the authority to
issue, as follows.
RESOLVED, that the Board of Directors
does hereby provide for the issuance of a series of Preferred Stock
for cash or exchange of other securities, rights or property and
does hereby fix and determine the rights, preferences, restrictions
and other matters relating to such series of Preferred Stock as
follows; and
RESOLVED, pursuant to the authority
expressly set forth in the Articles of Incorporation, the issuance
of a series of Preferred Stock designated as the Series D
Convertible Preferred Stock, par value $0.001 per share, of the
Company is hereby authorized and the designation, number of shares,
powers, preferences, rights, qualifications limitations and
restrictions thereof (in addition to any provisions set forth in
the Articles of Incorporation that are applicable to the Preferred
Stock of all classes and series) are hereby fixed, and the
Certificate of Designation of Relative Rights and Preferences of
the Series D Convertible Preferred Stock (this “Certificate of
Designation”) is hereby approved as
follows:
-1-
1. Designation,
Amount and Par Value.
(a) The
designation of such series of the Preferred Stock shall be the
Series D Convertible Preferred Stock, par value $0.001 per share
(the “Series D
Preferred”).
The maximum number of shares of Series D Preferred shall be
2,000,000 shares. The Series D Preferred shall be issued in
book-entry form, or if requested by any holder, such holder’s
shares may be issued in certificated form. To the extent that any
shares of Series D Preferred Stock are issued in book-entry form,
references herein to “certificates” shall refer to the
book-entry notation relating to such shares.
(b) The
Company shall register shares of the Series D Preferred upon
records to be maintained by the Company for that purpose (the
“Series D
Preferred Stock Register”), in the name of the holders
thereof from time to time. The Company may deem and treat the
registered holder of shares of Series D Preferred as the absolute
owner thereof for the purpose of any conversion thereof and for all
other purposes. The Company shall register the transfer of any
shares of Series D Preferred in the Series D Preferred Stock
Register, upon surrender of the certificates evidencing such shares
to be transferred, duly endorsed by the holder thereof, to the
Company at its address specified herein. Upon any such registration
or transfer, a new certificate evidencing the shares of Series D
Preferred so transferred shall be issued to the transferee and a
new certificate evidencing the remaining portion of the shares not
so transferred, if any, shall be issued to the transferring holder,
in each case, within three business days. The provisions of this
Certificate of Designation are intended to be for the benefit of
all holders from time to time and shall be enforceable by any such
holder.
2. Dividends.
Whenever the Board of Directors declares a dividend on the common
stock of the Company, par value $0.001 per share (the
“Common
Stock”), each holder of record of a share of Series D
Preferred, or any fraction of a share of Series D Preferred, on the
date set by the Board of Directors to determine the owners of the
Common Stock of record entitled to receive such dividend (the
“Record
Date”) shall be entitled to receive out
of any assets at the time legally available therefore, an amount
equal to such dividend declared on one share of Common Stock
multiplied by the number of shares of Common Stock into which such
share, or such fraction of a share, of Series D Preferred could be
converted on the Record Date.
3. Voting
Rights.
(a) Class
Voting Rights. So long as any shares of the Series D
Preferred remain outstanding, the Company shall not, without the
affirmative vote or consent of the holders of majority of the
shares of the Series D Preferred then-outstanding, given in person
or by proxy, either in writing or at a meeting, in which the
holders of the Series D Preferred vote separately as a
class:
(i) amend,
alter, modify or repeal (whether by merger, consolidation or
otherwise) this Certificate of Designation, the Articles of
Incorporation or the bylaws in any manner that adversely affects
the rights, preferences, privileges or the restrictions provided
for the benefit of, the Series D Preferred;
(ii) issue
further shares of Series D Preferred or increase or decrease (other
than by conversion) the number of authorized shares of Series D
Preferred; or
(iii) enter
into any agreement to do any of the foregoing that is not expressly
made conditional on obtaining the affirmative vote or written
consent of the majority of then-outstanding Series D
Preferred.
-2-
(b) General
Voting Rights. In addition to the class voting rights set
forth in Section 3(a), the Series D Preferred shall have the
following general voting rights.
(i) Prior
to Approval Date (as defined in Section 5(a)), the Series D
Preferred will be entitled to one vote per share of Series D
Preferred and vote as a single class with the shares of our Common
Stock.
(ii) On
and after the Approval Date, the Series D Preferred shall have no
voting rights except to the extent provided in Section 3(a), in the
Articles of Incorporation or as otherwise required by applicable
law.
4. Rank;
Liquidation Preference.
(a) The
Series D Preferred shall rank (i) senior all of the common stock,
par value $0.001 per share, of the Company (the “Common
Stock”); (ii) senior to all other classes and series
of equity securities of the Company that by their terms do not rank
senior to the Series D Preferred (“Junior
Stock”); (iii) on parity with all shares of the
Company’s Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock and Series C Convertible Preferred
Stock; (iv) on parity with any class or series of capital stock of
the Company hereafter created specifically ranking by its terms on
parity with the Series D Preferred (together with the
Corporation’s Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock and Series C Convertible Preferred
Stock, the “Parity
Stock”); and (v) junior to any class or series of
capital stock of the Company hereafter created specifically ranking
by its terms senior to any Series D Preferred Stock
(“Senior
Stock”), in each case, as to distributions of assets
upon liquidation, dissolution or winding up of the Company, whether
voluntarily or involuntarily and/or as to the right to receive
dividends.
(b) Prior
to the Approval Date, in the event of the liquidation, dissolution
or winding up of the affairs of the Company, whether voluntary or
involuntary, after payment or provision for payment of the debts
and other liabilities of the Company, and subject to the prior and
superior rights of any Senior Stock, each holder of shares of
Series D Preferred is entitled to receive, in preference to any
distributions of any of the assets or surplus funds of the Company
to the holders of the Common Stock and any of our securities that
are Junior Stock and pari passu with any distribution to the
holders of any Parity Stock, an amount equal to $0.001 per share of
Series D Preferred, plus an additional amount equal to any
dividends declared but unpaid on such shares, before any payments
shall be made or any assets distributed to holders of the Common
Stock or any of our securities that Junior Stock. If, upon any such
liquidation, dissolution or winding up of the Company, the assets
of the Company shall be insufficient to pay the holders of shares
of the Series D Preferred Stock the amount required under the
preceding sentence, then all remaining assets of the Company shall
be distributed ratably to holders of the shares of the Series D
Preferred Stock and any Parity Stock. After such preferential payment, each holder of
shares of Series D Preferred shall be entitled to participate pari
passu with the holders of the Common Stock (on an as-converted
basis, without regard to the limitations set forth in Section 7)
and any Parity Stock, in the remaining distribution of the net
assets of the Company available for distribution. On or after the
Approval Date, the Series D Preferred shall have no liquidation
preference.
(c) Written
notice of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, stating a payment date
and the place where the distributable amounts shall be payable,
shall be given by mail, postage prepaid, no less than forty-five
(45) days prior to the payment date stated therein, to the holders
of record of the Series D Preferred at their respective addresses
as the same shall appear on the books of the Company.
-3-
5. Conversion.
(a) Right
to Convert. At any time on or after the issuance date of the
Series D Preferred (the “Issuance
Date”), the holder of any such shares of Series D
Preferred may, at such holder’s option, subject to the
limitations set forth in Section 7, elect to convert (a
“Voluntary
Conversion”) all or any portion of such
holder’s shares of Series D Preferred into a number of fully
paid and nonassessable shares of Common Stock at a conversion rate
of twenty-three (23) shares of Common Stock for each whole share of
Series D Preferred (subject to adjustments set forth in Section
7(e), the “Conversion
Rate”); provided, however, that no shares of
Series D Preferred shall be convertible into shares of Common Stock
prior to the date on which the Company’s stockholders approve
an amendment to the Company’s Articles of Incorporation to
authorize the issuance of additional shares of Common Stock
sufficient to satisfy the conversion in full of each share of
Series D Preferred authorized by this Certificate of Designation
into shares of Common Stock at the Conversion Rate and such
amendment to the Articles of Incorporation becomes effective (the
“Approval
Date”). The Company shall keep written
records of the conversion of the shares of Series D Preferred
converted by each holder. A holder shall be required to deliver the
original certificates representing the shares of Series D Preferred
upon any conversion of the Series D Preferred as provided in
Section 5(b).
(b) Mechanics
of Voluntary Conversion. The Voluntary Conversion of Series
D Preferred shall be conducted in the following
manner:
(i) Holder’s
Delivery Requirements. To convert Series D Preferred into
shares of Common Stock on any date (a “Voluntary Conversion
Date”), the holder thereof shall (A)
transmit by electronic mail, facsimile, or otherwise deliver, for
receipt on or prior to 5:00 p.m., New York time on such date, a
copy of a fully executed notice of conversion in the form attached
hereto as Exhibit A
(the “Conversion
Notice”)o the Company, and (B) with respect to the
conversion of shares of Series D Preferred held by any holder, such
holder shall surrender to a common carrier for delivery to the
Company as soon as practicable following such Voluntary Conversion
Date, but in no event later than five (5) business days after such
date, the original certificates representing the shares of Series D
Preferred being converted (or an indemnification undertaking with
respect to such shares in the case of their loss, theft or
destruction) (the “Preferred Stock
Certificates”).
(ii) Company’s Response.
Upon receipt by the Company of a copy of a Conversion Notice, the
Company shall immediately send, via electronic mail or facsimile, a
confirmation of receipt of such Conversion Notice to such holder
and the Company or its designated transfer agent (the
“Transfer
Agent”), as applicable, shall, within five
(5) business days following the date of receipt by the Company of
the certificate representing the shares of Series D Preferred being
converted, (x) issue and deliver to the holder the number of shares
of Common Stock to which the holder shall be entitled, and (y) if
the certificate so surrendered represents more shares of Series D
Preferred than those being converted, issue and deliver to the
holder a new certificate for such number of shares of Series D
Preferred represented by the surrendered certificate which were not
converted.
(iii) Record
Holder. The person or persons entitled to receive the shares
of Common Stock issuable upon a conversion of the Series D
Preferred shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on the Voluntary Conversion
Date.
(iv) Company’s
Failure to Timely Convert. If within five (5) business days
of the Company’s receipt of the Conversion Notice (the
“Share
Delivery Period”) the Company shall fail to issue and
deliver to a holder the number of shares of Common Stock to which
such holder is entitled upon such holder’s conversion of the
Series D Preferred (a “Conversion
Failure”), in addition to all other available remedies
which such holder may pursue hereunder, the Company shall pay
additional damages to such holder on each business day after such
fifth (5th) business day that such conversion is not timely
effected in an amount equal to 0.5% of the product of (A) the sum
of the number of shares of Common Stock not issued to the holder on
a timely basis pursuant to Section 5(b)(ii) and to which such
holder is entitled and (B) the closing bid price of the Common
Stock on the last possible date which the Company could have issued
such Common Stock to such holder without violating Section
5(b)(ii). If the Company fails to pay the additional damages set
forth in this Section 5(b)(iv) within five (5) business days of the
date incurred, then such payment shall bear interest at the rate of
2% per month (pro rated for partial months) until such payments are
made.
-4-
(c) Adjustments
of Conversion Rate.
(i) Adjustments
for Stock Splits and Combinations. If the Company shall at
any time or from time to time after the Issuance Date, effect a
stock split of the outstanding Common Stock, the Conversion Rate
shall be proportionately increased. If the Company shall at any
time or from time to time after the Issuance Date, combine the
outstanding shares of Common Stock, the Conversion Rate shall be
proportionately decreased. Any adjustments under this Section
5(c)(i) shall be effective at the close of business on the date the
stock split or combination occurs.
(ii) Adjustments
for Certain Dividends and Distributions. If the Company
shall at any time or from time to time after the Issuance Date,
make or issue or set a record date for the determination of holders
of Common Stock entitled to receive a dividend or other
distribution payable in shares of Common Stock, then, and in each
event, the Conversion Rate shall be increased as of the time of
such issuance or, in the event such record date shall have been
fixed, as of the close of business on such record date, by
multiplying, as applicable, the Conversion Rate then in effect by a
fraction:
(1) the
numerator of which shall be the total number of shares of Common
Stock issued and outstanding immediately after such issuance on the
close of business on such record date; and
(2) the
denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such
issuance on the close of business on such record date.
(iii) Adjustment
for Other Dividends and Distributions. If the Company shall,
at any time or from time to time after the Issuance Date, make or
issue or set a record date for the determination of holders of
Common Stock entitled to receive a dividend or other distribution
payable in securities of the Company other than shares of Common
Stock, then, and in each event, an appropriate revision to the
applicable Conversion Rate shall be made and provision shall be
made (by adjustments of the Conversion Rate or otherwise) so that
the holders of Series D Preferred shall receive upon conversions
thereof, in addition to the number of shares of Common Stock
receivable thereon, the number of securities of the Company which
they would have received had their Series D Preferred been
converted into Common Stock on the date of such event and had
thereafter, during the period from the date of such event to and
including the Conversion Date, retained such securities (together
with any distributions payable thereon during such period), giving
application to all adjustments called for during such period under
this Section 5(c)(iii) with respect to the rights of the holders of
the Series D Preferred.
(iv) Adjustments
for Reclassification, Exchange or Substitution. If the
Common Stock issuable upon conversion of the Series D Preferred at
any time or from time to time after the Issuance Date shall be
changed to the same or different number of shares of any class or
classes of stock, whether by reclassification, exchange,
substitution or otherwise (other than by way of a stock split or
combination of shares or stock dividends provided for in Sections
5(c)(i), (ii) and (iii), or a reorganization, merger,
consolidation, or sale of assets provided for in Section 5(c)(v)),
then, and in each event, an appropriate revision to the Conversion
Rate shall be made and provisions shall be made so that the holder
of each share of Series D Preferred shall have the right thereafter
to convert such share of Series D Preferred into the kind and
amount of shares of stock and other securities receivable upon
reclassification, exchange, substitution or other change, by
holders of the number of shares of Common Stock into which such
share of Series D Preferred might have been converted immediately
prior to such reclassification, exchange, substitution or other
change, all subject to further adjustment as provided
herein.
-5-
(v) Adjustments
for Reorganization, Merger, Consolidation or Sales of
Assets. If at any time or from time to time after the
Issuance Date there shall be a capital reorganization of the
Company (other than by way of a stock split or combination of
shares or stock dividends or distributions provided for in Section
5(c)(i), (ii) and (iii), or a reclassification, exchange or
substitution of shares provided for in Section 5(c)(iv)), or a
merger or consolidation of the Company with or into another
corporation, or the sale of all or substantially all of the
Company’s properties or assets to any other person (an
"Organic
Change"), then as a
part of such Organic Change an appropriate revision to the
Conversion Rate shall be made and provision shall be made so that
the holder of each share of Series D Preferred shall have the right
thereafter to convert such share of Series D Preferred into the
kind and amount of shares of stock and other securities or property
of the Company or any successor corporation resulting from the
Organic Change which the holder of such share of Series D Preferred
would have received if such share of Series D Preferred had been
converted prior to such Organic Change.
(vi) Record
Date. In case the Company shall take record of the holders
of its Common Stock or any other Preferred Stock for the purpose of
entitling them to subscribe for or purchase Common Stock or
Convertible Securities, then the date of the issue or sale of the
shares of Common Stock shall be deemed to be such record
date.
(f) No
Impairment. The Company shall not, by amendment of its
Articles of Incorporation or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this
Section 5 and in the taking of all such action as may be necessary
or appropriate in order to protect the conversion rights of the
holders of the Series D Preferred against impairment. In the event
a holder shall elect to convert any shares of Series D Preferred as
provided herein, the Company cannot refuse conversion based on any
claim that such holder or any person associated or affiliated with
such holder has been engaged in any violation of law, unless an
injunction from a court, on notice, restraining and/or adjoining
conversion of all or of such shares of Series D Preferred shall
have been issued.
(g) Certificates
as to Adjustments. Upon occurrence of each adjustment or
readjustment of the Conversion Rate or number of shares of Common
Stock issuable upon conversion of the Series D Preferred pursuant
to this Section 5, the Company at its expense shall promptly
compute such adjustment or readjustment in accordance with the
terms hereof and furnish to each holder of such Series D Preferred
a certificate setting forth such adjustment and readjustment,
showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon written request of
the holder of such affected Series D Preferred, at any time,
furnish or cause to be furnished to such holder a like certificate
setting forth such adjustments and readjustments, the Conversion
Rate in effect at the time, and the number of shares of Common
Stock and the amount, if any, of other securities or property which
at the time would be received upon the conversion of a share of
such Series D Preferred. Notwithstanding the foregoing, the Company
shall not be obligated to deliver a certificate unless such
certificate would reflect an increase or decrease of at least one
percent of such adjusted amount.
(h) Issue
Taxes. The Company shall pay any and all issue and other
taxes, excluding federal, state or local income taxes, that may be
payable in respect of any issue or delivery of shares of Common
Stock on conversion of shares of Series D Preferred pursuant
hereto; provided,
however, that the
Company shall not be obligated to pay any transfer taxes resulting
from any transfer requested by any holder in connection with any
such conversion.
-6-
(i) Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally, by facsimile,
electronic mail or three (3) business days following (A) being
mailed by certified or registered mail, postage prepaid,
return-receipt requested, or (B) delivered to an express mail
delivery service such as Federal Express, with written receipt by
the addressee required, in either case addressed to the holder of
record at its address appearing on the books of the Company. The
Company will give written notice to each holder of Series D
Preferred at least twenty (20) days prior to the date on which the
Company closes its books or takes a record (z) with respect to any
dividend or distribution upon the Common Stock, (y) with respect to
any pro rata subscription offer to holders of Common Stock or (x)
for determining rights to vote with respect to any Organic Change,
dissolution, liquidation or winding-up and in no event shall such
notice be provided to such holder prior to such information being
made known to the public. The Company will also give written notice
to each holder of Series D Preferred at least twenty (20) days
prior to the date on which any Organic Change, dissolution,
liquidation or winding-up will take place and in no event shall
such notice be provided to such holder prior to such information
being made known to the public.
(j) Fractional
Shares. No fractional shares of Common Stock shall be issued
upon conversion of the Series D Preferred. In lieu of any
fractional shares to which the holder would otherwise be entitled,
the Company, at its option, shall (A) pay cash equal to the product
of such fraction multiplied by the average of the closing bid
prices of the Common Stock for the five (5) consecutive trading
immediately preceding the Voluntary Conversion Date, or (B) issue
one whole share of Common Stock to the holder.
(k) Reservation
of Common Stock. Following the Approval Date, the Company
shall, so long as any shares of Series D Preferred are outstanding,
reserve and keep available out of its authorized and unissued
Common Stock, solely for the purpose of effecting the conversion of
the Series D Preferred, such number of shares of Common Stock as
shall from time to time be sufficient to effect the conversion of
all of the Series D Preferred then outstanding (without giving
effect to the limitations set forth in Section 7).
(1) Retirement
of Series D Preferred. Conversion of Series D Preferred
shall be deemed to have been effected on the applicable Voluntary
Conversion Date. The Company shall keep written records of the
conversion of the shares of Series D Preferred converted by each
holder. A holder shall be required to deliver the original
certificates representing the shares of Series D Preferred upon any
conversion of the Series D Preferred represented by such
certificates.
(m) Regulatory
Compliance. If any shares of Common Stock to be reserved for
the purpose of conversion of Series D Preferred require
registration or listing with or approval of any governmental
authority, stock exchange or other regulatory body under any
federal or state law or regulation or otherwise before such shares
may be validly issued or delivered upon conversion, the Company
shall, at its sole cost and expense, in good faith and as
expeditiously as possible, endeavor to secure such registration,
listing or approval, as the case may be.
6. No
Preemptive or Redemption Rights. No holder of the Series D
Preferred shall be entitled to rights to subscribe for, purchase or
receive any part of any new or additional shares of any class,
whether now or hereafter authorized, or of bonds or debentures, or
other evidences of indebtedness convertible into or exchangeable
for shares of any class, but all such new or additional shares of
any class, or any bond, debentures or other evidences of
indebtedness convertible into or exchangeable for shares, may be
issued and disposed of by the Board of Directors on such terms and
for such consideration (to the extent permitted by law), and to
such person or persons as the Board of Directors in their absolute
discretion may deem advisable.
7. Conversion
Restriction. Notwithstanding anything to the contrary set
forth in Section 5, at no time may a holder of shares of Series D
Preferred convert shares of the Series D Preferred if the number of
shares of Common Stock to be issued pursuant to such conversion
would exceed, when aggregated with all other shares of Common Stock
owned by such holder at such time, the number of shares of Common
Stock which would result in such holder beneficially owning (as
determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules thereunder) more
than 9.99% of all of the Common Stock outstanding at such time (the
“Ownership
Limitation”); provided, however, that upon a holder of
Series D Preferred providing the Company with sixty-one (61)
days’ notice (pursuant to Section 5(i)) the Ownership
Limitation may be increased up to 19.99% with respect to such
holder.
-7-
8. Inability
to Fully Convert.
(a) Holder’s
Option if Company Cannot Fully Convert. If, upon the
Company’s receipt of a Conversion Notice, the Company cannot
issue shares of Common Stock for any reason, including, without
limitation, because the Company (x) does not have a sufficient
number of shares of Common Stock authorized and available, (y)
pursuant to Section 7 or (z) is otherwise prohibited by applicable
law or by the rules or regulations of any stock exchange,
interdealer quotation system or other self-regulatory organization
with jurisdiction over the Company or its securities, from issuing
all of the Common Stock which is to be issued to a holder of Series
D Preferred pursuant to a Conversion Notice, then the Company shall
issue as many shares of Common Stock as it is able to issue in
accordance with such holder’s Conversion Notice and with
respect to the unconverted Series D Preferred (the
“Unconverted Preferred
Stock”) the holder, solely at such
holder’s option, can elect, at any time after receipt of
notice from the Company that there is Unconverted Preferred Stock,
to void the holder’s Conversion Notice as to the number of
shares of Common Stock the Company is unable to issue and retain or
have returned, as the case may be, the certificates for the shares
of the Unconverted Preferred Stock.
In the
event a Holder shall elect to convert any shares of Series D
Preferred as provided herein, the Company cannot refuse conversion
based on any claim that such Holder or any person associated or
affiliated with such Holder has been engaged in any violation of
law, violation of an agreement to which such Holder is a party or
for any reason whatsoever, unless, an injunction from a court, on
notice, restraining and or enjoining conversion of all or any of
such shares of Series D Preferred shall have issued.
(b) Mechanics
of Fulfilling; Holder’s Election. The Company shall
immediately send via facsimile to a holder of Series D Preferred,
upon receipt of a facsimile copy of a Conversion Notice from such
holder which cannot be fully satisfied as described in Section
8(a), a notice of the Company’s inability to fully satisfy
such holder’s Conversion Notice (the “Inability to Fully Convert
Notice”). Such Inability to Fully Convert
Notice shall indicate (i) the reason why the Company is unable to
fully satisfy such holder’s Conversion Notice and (ii) the
number of shares of Series D Preferred which cannot be
converted.
9. Vote
to Change the Terms of or Issue Preferred Stock. The
affirmative vote at a meeting duly called for such purpose, or the
written consent without a meeting, of the holders of not less than
a majority of the then-outstanding shares of Series D Preferred,
shall be required for any change to this Certificate of Designation
or the Company’s Articles of Incorporation which would amend,
alter, change or repeal any of the powers, designations,
preferences and rights of the Series D Preferred.
10. Lost
or Stolen Certificates. Upon receipt by the Company of
evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of any Preferred Stock Certificates
representing the shares of Series D Preferred, and, in the case of
loss, theft or destruction, of any indemnification undertaking by
the holder to the Company and, in the case of mutilation, upon
surrender and cancellation of the Preferred Stock Certificate(s),
the Company shall execute and deliver new preferred stock
certificate(s) of like tenor and date.
11. Remedies,
Characterizations, Other Obligations, Breaches and Injunctive
Relief. The remedies provided in this Certificate of
Designation shall be cumulative and in addition to all other
remedies available under this Certificate of Designation, at law or
in equity (including a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a
waiver of compliance with the provisions giving rise to such remedy
and nothing herein shall limit a holder’s right to pursue
actual damages for any failure by the Company to comply with the
terms of this Certificate of Designation. Amounts set forth or
provided for herein with respect to conversion and the like (and
the computation thereof) shall be the amounts to be received by the
holder thereof and shall not, except as expressly provided herein,
be subject to any other obligation of the Company (or the
performance thereof). The Company acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to the
holders of the Series D Preferred and that the remedy at law for
any such breach may be inadequate. The Company therefore agrees
that, in the event of any such breach or threatened breach, the
holders of the Series D Preferred shall be entitled, in addition to
all other available remedies, to an injunction restraining any
breach, without the necessity of showing economic loss and without
any bond or other security being required.
-8-
12. Specific
Shall Not Limit General; Construction. No specific provision
contained in this Certificate of Designation shall limit or modify
any more general provision contained herein.
13. Failure
or Indulgence Not Waiver. No failure or delay on the part of
a holder of Series D Preferred in the exercise of any power, right
or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any
other right, power or privilege.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Certificate of
Designation is executed on Company this 21st day of December,
2020.
|
|
VISTAGEN
THERAPEUTICS, INC.
By:
/s/ Shawn K.
Singh
Name: Shawn
K. Singh
Title: Chief
Executive Officer
|
|[Signature
Page to Certificate of Designation of Series D Preferred
Stock]
-10-
EXHIBIT
A
VISTAGEN
THERAPEUTICS, INC. CONVERSION NOTICE
Reference
is made to the Certificate of Designation of the Relative Rights
and Preferences of the Series D Convertible Preferred Stock of
VistaGen Therapeutics, Inc. (the “Certificate of
Designation”). In accordance with and pursuant to
the Certificate of Designation, the undersigned hereby elects to
convert the number of shares of Series D Preferred, par value
$0.001 per share (the “Preferred
Shares”), of VistaGen Therapeutics, Inc., a Nevada
corporation (the “Company”), indicated
below into shares of common stock, par value $0.001 per share (the
“Common
Stock”), of the Company, by tendering the
stock certificate(s) representing the share(s) of Preferred Shares
specified below as of the date specified below.
Date of
Conversion:
Number
of Preferred Shares to be converted:
Stock
certificate no(s).:
Number
of Preferred Shares to be converted:
Common
Stock has been sold:
YES NO
Please
confirm the following information:
Conversion
Rate:
Number
of shares of Common Stock to be issued:
Number
of shares of Common Stock beneficially owned or deemed beneficially
owned by the Holder on the Date of Conversion determined in
accordance with Section 16 of the Securities Exchange Act of 1934,
as amended:
Please
issue the Common Stock into which the Preferred Shares are being
converted and, if applicable, any check drawn on an account of the
Company in the following name and to the following
address:
Issue
to:
Facsimile
Number:
Authorization:
By: _____________
Title: _____________
Dated: _____________
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