Blueprint
AYTU
BIOSCIENCE, INC.
CERTIFICATE
OF DESIGNATION OF PREFERENCES,
RIGHTS
AND LIMITATIONS
OF
SERIES
G CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION
151 OF THE DELAWARE GENERAL CORPORATION LAW
The
undersigned, Joshua R. Disbrow and David A. Green, do hereby
certify that:
1.
They
are the Chairman and Chief Executive Officer, and the Chief
Financial Officer, Secretary, and Treasurer, respectively, of Aytu
BioScience, Inc., a Delaware corporation (the “Corporation”).
2.
The Corporation is authorized to issue 50,000,000 shares of
preferred stock, 410,000 of which have been issued.
3.
The
following resolutions were duly adopted by the board of directors
of the Corporation (the “Board of
Directors”):
WHEREAS, the
certificate of incorporation of the Corporation provides for a
class of its authorized stock known as preferred stock, consisting
of 50,000,000 shares, $0.0001 par value per share, 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 preferences of any wholly unissued
series of preferred stock and the number of shares constituting any
series and the designation thereof, of 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 series of the preferred stock, which shall
consist of up to 9,805,845 shares of the preferred stock which the
Corporation has the authority to issue, as follows:
NOW,
THEREFORE, BE IT 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:
TERMS
OF PREFERRED STOCK
Section 1. Definitions. For the purposes
hereof, the following terms shall have the following
meanings:
“Affiliate” means any
Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed
under Rule 405 of the Securities Act.
“Business Day” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by
law or other governmental action to close.
“Commission” means the
United States Securities and Exchange Commission.
“Common Stock” means the
Corporation’s common stock, par value $0.0001 per share, and
stock of any other class of securities into which such securities
may hereafter be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Corporation or the Subsidiaries which
would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock,
rights, options, warrants or other instrument that is at any time
convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock.
“Conversion Date” shall
have the meaning set forth in Section 6(a).
“Conversion Ratio” shall
have the meaning set forth in Section 6(b).
“Conversion Shares” means,
collectively, the shares of Common Stock issuable upon conversion
of the shares of Preferred Stock in accordance with the terms
hereof.
“Delaware Courts” shall
have the meaning set forth in Section 8(d).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Fundamental Transaction”
shall have the meaning set forth in Section 7(c).
“GAAP” means United States
generally accepted accounting principles.
“Holder” shall have the
meaning given such term in Section 2.
“Liquidation” shall have
the meaning set forth in Section 5.
“Notice of Conversion”
shall have the meaning set forth in Section 6(a).
“Original Issue Date”
means the date of the first issuance of any shares of the Preferred
Stock regardless of the number of transfers of any particular
shares of Preferred Stock and regardless of the number of
certificates which may be issued to evidence such Preferred
Stock.
“Person” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“Preferred Stock” shall
have the meaning set forth in Section 2.
“Purchase Agreement” means
the Asset Purchase Agreement, dated as of the Original Issue Date,
among the Corporation and the original Holder, as amended, modified
or supplemented from time to time in accordance with its
terms.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Share Delivery Date”
shall have the meaning set forth in Section 6(c).
“Shareholder Approval”
means such approval as required by the applicable Nasdaq Stock
Market Rules by the shareholders of the Corporation with respect to
the conversion of all Preferred Stock and the issuance of all of
the shares of Common Stock issuable upon conversion of the
Preferred Stock, as set forth in the Purchase
Agreement.
“Trading Day” means a day
on which the principal Trading Market is open for
business.
“Trading Market” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE
American, the Nasdaq Capital Market, the Nasdaq Global
Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).
“Transfer Agent” means
Issuer Direct Corporation, the current transfer agent of the
Corporation with a mailing address of 500 Perimeter Park Drive,
Suite D, Morrisville, NC 27560 and a facsimile number of (919)
481-6222, and any successor transfer agent of the
Corporation.
Section 2. Designation, Amount and Par
Value. The series of preferred stock shall be designated as
Series G Convertible Preferred Stock (the “Preferred Stock”) and the
number of shares so designated shall be up to 9,805,845 (which
shall not be subject to increase without the written consent of all
of the holders of the Preferred Stock (each, a “Holder” and collectively,
the “Holders”)). Each share of
Preferred Stock shall have a par value of
$0.0001
per share. The Preferred Stock will initially be issued in
book-entry form. As between the Corporation and a beneficial owner
of Preferred Stock, such beneficial owner of Preferred Stock shall
have all of the rights and remedies of a Holder
hereunder.
Section 3. Dividends. Except for stock
dividends or distributions for which adjustments are to be made
pursuant to Section 7, Holders shall be entitled to receive, and
the Corporation shall pay, dividends on shares of Preferred Stock
equal (on an as-if-converted-to-Common-Stock basis, disregarding
for such purpose any conversion limitations hereunder) to and in
the same form as dividends actually paid on shares of the Common
Stock when, as and if such dividends are paid on shares of the
Common Stock. No other dividends shall be paid on shares of
Preferred Stock. The Corporation shall not pay any dividends on the
Common Stock unless the Corporation simultaneously complies with
this provision.
Section 4. Voting Rights. Except as
otherwise provided herein or as otherwise required by law, the
Preferred Stock shall have no voting rights. However, as long as
any shares of Preferred Stock are outstanding, the Corporation
shall not, without the affirmative vote of the Holders of a
majority of the then outstanding shares of the Preferred Stock, (a)
alter or change adversely the powers, preferences or rights given
to the Preferred Stock (including by the designation,
authorization, or issuance of any shares of preferred stock of the
Corporation that purports to be pari passu with, or senior in
rights or preferences to, the Preferred Stock) or alter or amend
this Certificate of Designation, (b) amend its certificate of
incorporation or other charter documents in any manner that
adversely affects any rights of the Holders, (c) increase the
number of authorized shares of Preferred Stock, or (d) enter into
any agreement with respect to any of the foregoing. Holders of
shares of Common Stock acquired upon the conversion of shares of
Preferred Stock shall be entitled to the same voting rights as each
other holder of Common Stock.
Section 5. Liquidation. Upon any
liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary (a “Liquidation”), the
Holders shall be entitled to receive out of the assets, whether
capital or surplus, of the Corporation the same amount that a
holder of Common Stock would receive if the Preferred Stock were
fully converted to Common Stock, which amounts shall be paid pari
passu with all holders of Common Stock. The Corporation shall mail
written notice of any such Liquidation, not less than 45 days prior
to the payment date stated therein, to each Holder.
Section 6. Conversion.
(a) Conversion
of Preferred Stock. Prior to Shareholder Approval, the
Preferred Stock is non- convertible. As of 5:00 p.m. Eastern time
on the date of the Shareholder Approval, each share of the
Preferred Stock shall be convertible, at the option of the Holder
and solely in connection with either (i) distribution of the
underlying shares of Common Stock issuable upon conversion to
Holder’s shareholders or (ii) sale of the underlying shares
of Common Stock issuable upon conversion in open market broker
transactions or private sales to unaffiliated third parties, into
that number of shares of Common Stock determined by multiplying the
number of shares of Preferred Stock held by each Holder by the
Conversion Ratio. Holders shall effect conversion by providing the
Corporation with the form of conversion notice attached hereto as
Annex A (a
“Notice of
Conversion”). Each Notice of Conversion shall specify
the number of shares of Preferred Stock to be converted, the number
of shares of Preferred Stock owned prior to the conversion at
issue, the number of shares of Preferred Stock owned subsequent to
the conversion at issue and the date on which such conversion is to
be effected, which date may not be prior to the date the applicable
Holder delivers by facsimile or e-mail such Notice of Conversion to
the Corporation (such date, the “Conversion Date”). If
no Conversion Date is
specified in a Notice of Conversion, the Conversion Date shall be
the date that such Notice of Conversion to the Corporation is
deemed delivered hereunder. No ink-original Notice of Conversion
shall be required, nor shall any medallion guarantee (or other type
of guarantee or notarization) of any Notice of Conversion form be
required. The calculations and entries set forth in the Notice of
Conversion shall control in the absence of manifest or mathematical
error. To effect conversions of shares of Preferred Stock, a Holder
shall not be required to surrender the certificate(s) representing
the shares of Preferred Stock to the Corporation unless all of the
shares of Preferred Stock represented thereby are so converted, in
which case such Holder shall deliver the certificate representing
such shares of Preferred Stock promptly following the Conversion
Date at issue. Shares of Preferred Stock converted into Common
Stock or redeemed in accordance with the terms hereof shall be
canceled and shall not be reissued. Immediately following any
conversion, the rights of the Holders of any converted Preferred
Stock shall cease and the Persons entitled to receive Common Stock
upon the conversion of Preferred Stock shall be treated for all
purposes as having become the owners of such Common
Stock.
(b) Conversion
Ratio. Each share of Preferred Stock shall convert, without
the payment of additional consideration by the Holder, on a one for
one basis into shares of Common Stock, subject to adjustment herein
(the “Conversion
Ratio”).
(c) Mechanics
of Conversion
i.
Delivery of Conversion Shares Upon
Conversion. Promptly following the Conversion Date, but not
later than the earlier of (i) two (2) Trading Days and (ii) the
number of Trading Days comprising the Standard Settlement Period
(as defined below) after the Conversion Date (the
“Share Delivery
Date”), the Corporation shall deliver, or cause to be
delivered, to the converting Holder of Preferred Stock (A) the
number of Conversion Shares to be issued upon the conversion of the
Preferred Stock, which Conversion Shares, on or after the earlier
of (i) the six month anniversary of the Original Issue Date or (ii)
the date a registration statement covering the resale of such
shares by the Holder is declared effective by the Commission, shall
be free of restrictive legends and trading restrictions (other than
those which may then be required by the Purchase Agreement), and
(B) a bank check in the amount of accrued and unpaid dividends, if
any. When delivering the Conversion Shares as provided herein, the
Corporation shall use commercially reasonable efforts to deliver
the Conversion Shares required to be delivered by the Corporation
under this Section 6 electronically through the Depository Trust
Company or another established clearing corporation performing
similar functions, unless otherwise agreed to with the Holders. As
used herein, “Standard Settlement Period” means the
standard settlement period, expressed in a number of Trading Days,
on the Corporation’s primary Trading Market with respect to
the Common Stock as in effect on the Conversion Date. As used
herein, “Standard
Settlement Period” means the
standard settlement period, expressed in a number of Trading Days,
on the Corporation’s primary Trading Market with respect to
the Common Stock as in effect on the date of delivery of the Notice
of Conversion.
ii.
Obligation Absolute; Partial
Liquidated Damages. The Corporation’s obligation to
issue and deliver the Conversion Shares upon conversion of
Preferred Stock in accordance with the terms hereof are absolute
and unconditional, irrespective of any action or inaction by a
Holder to enforce the same, any waiver or consent with respect to
any provision hereof, the recovery of any judgment against any
Person or any action to enforce the same, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach
or alleged breach by such Holder or any other Person of any
obligation to the Corporation or any violation or alleged violation
of law by such Holder or any other person, and irrespective of any
other circumstance which might otherwise limit such obligation of
the Corporation to such Holder in connection with the issuance of
such Conversion Shares;provided, however, that such delivery
shall not operate as a waiver by the Corporation of any such action
that the Corporation may have against such Holder. Nothing herein
shall limit a Holder’s right to pursue actual damages for the
Corporation’s failure to deliver Conversion Shares within the
period specified herein and such Holder shall have the right to
pursue all remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance,
injunctive relief, or both specific performance and injunctive
relief. The exercise of any such rights shall not prohibit a Holder
from seeking to enforce damages pursuant to any other Section
hereof or under applicable law.
iii.
Reservation of Shares Issuable Upon
Conversion. The Corporation covenants that it will at all
times reserve and keep available out of its authorized and unissued
shares of Common Stock for the sole purpose of issuance upon
conversion of the Preferred Stock as herein provided, free from
preemptive rights or any other actual contingent purchase rights of
Persons other than the Holder (and the other holders of the
Preferred Stock), not less than such aggregate number of shares of
the Common Stock as shall be issuable (taking into account the
adjustments and restrictions of Section 7) upon the conversion of
the then outstanding shares of Preferred Stock. The Corporation
covenants that all shares of Common Stock that shall be so issuable
shall, upon issue, be duly authorized, validly issued, fully paid
and nonassessable.
iv.
Fractional Shares. No
fractional shares or scrip representing fractional shares shall be
issued upon the conversion of the Preferred Stock. As to any
fraction of a share which the Holder would otherwise be entitled to
purchase upon such conversion, the Corporation shall round up to
the next whole share.
v.
Transfer Taxes and Expenses.
The issuance of Conversion Shares on conversion of this Preferred
Stock shall be made without charge to any Holder for any
documentary stamp or similar taxes that may be payable in respect
of the issue or delivery of such Conversion Shares. The Corporation
shall pay all transfer agent fees required for same-day processing
and all fees to the Depository Trust Company (or another
established clearing corporation performing similar functions)
required for same-day electronic delivery of the Conversion
Shares.
Section 7. Certain
Adjustments.
(a) Stock Dividends and Stock
Splits. If the Corporation, at any time while this Preferred
Stock is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions payable in shares of Common Stock
on shares of Common Stock or any other Common Stock Equivalents
(which, for avoidance of doubt, shall not include any shares of
Common Stock issued by the Corporation upon conversion of, or
payment of a dividend on, this Preferred Stock), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares,
(iii) combines (including by way of a reverse stock split)
outstanding shares of Common Stock into a smaller number of shares,
or (iv) issues, in the event of a reclassification of shares of the
Common Stock, any shares of capital stock of the Corporation, then
the Conversion Ratio shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding
immediately after such event, and of which the denominator shall be
the number of shares of Common Stock (excluding any treasury shares
of the Corporation) outstanding immediately before such event. Any
adjustment made pursuant to this Section 7(a) shall become
effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in
the case of a subdivision, combination or
re-classification.
(b) Pro Rata Distributions. During
such time as this Preferred Stock is outstanding, if the
Corporation declares or makes any dividend or other distribution of
its assets (or rights to acquire its assets) to holders of shares
of Common Stock, by way of return of capital or otherwise
(including, without limitation, any distribution of cash, stock or
other securities, property or options by way of a dividend, spin
off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “Distribution”), at any
time after the issuance of this Preferred Stock, then, in each such
case, the Holder shall be entitled to participate in such
Distribution to the same extent that the Holder would have
participated therein if the Holder had held the number of shares of
Common Stock acquirable upon complete conversion of this Preferred
Stock immediately before the date of which a record is taken for
such Distribution, or, if no such record is taken, the date as of
which the record holders of shares of Common Stock are to be
determined for the participation in such Distribution.
(c) Fundamental Transaction. If, at
any time while this Preferred Stock is outstanding, (i) the
Corporation, directly or indirectly, in one
or more related transactions effects any merger or consolidation of
the Corporation with or into another Person, (ii) the Corporation,
directly or indirectly, effects any sale, lease, license,
assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related
transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Corporation or another
Person) is completed pursuant to which holders of Common Stock are
permitted to sell, tender or exchange their shares for other
securities, cash or property and has been accepted by the holders
of 50% or more of the outstanding Common Stock, (iv) the
Corporation, directly or indirectly, in one or more related
transactions effects any reclassification, reorganization or
recapitalization of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property,
or (v) the Corporation, directly or indirectly, in one or more
related transactions consummates a stock or share purchase
agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme
of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding shares of Common Stock
(not including any shares of Common Stock held by the other Person
or other Persons making or party to, or associated or affiliated
with the other Persons making or party to, such stock or share
purchase agreement or other business combination) (each a
“Fundamental
Transaction”), then each Holder shall automatically
receive, for each Conversion Share that would have been issuable
upon such conversion immediately prior to the occurrence of such
Fundamental Transaction, the same consideration receivable as a
result of such Fundamental Transaction by a holder of the number of
shares of Common Stock for which the Preferred Stock is convertible
immediately prior to such Fundamental Transaction.
(d) Calculations. All calculations
under this Section 7 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of
this Section 7, the number of shares of Common Stock deemed to be
issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding any treasury shares of
the Corporation) issued and outstanding.
(e) Notice to the
Holders.
i. Adjustment
to Conversion Ratio. Whenever the Conversion Ratio is
adjusted pursuant to any provision of this Section 7, the
Corporation shall promptly deliver to each Holder by facsimile or
email a notice setting forth the Conversion Ratio after such
adjustment and setting forth a brief statement of the facts
requiring such adjustment.
ii. Notice
to Allow Conversion by Holder.
If (A) the Corporation shall declare a dividend (or any other
distribution in whatever form) on the Common Stock, (B) the
Corporation shall declare a special nonrecurring cash
dividend on or a redemption of the Common Stock, (C) the
Corporation shall authorize the granting to all holders of the
Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any rights, (D) the
approval of any stockholders of the Corporation shall be required
in connection with any reclassification of the Common Stock, any
consolidation or merger to which the Corporation is a party, any
sale or transfer of all or substantially all of the assets of the
Corporation, or any compulsory share exchange whereby the Common
Stock is converted into other securities, cash or property or (E)
the Corporation shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the
Corporation, then, in each case, the Corporation shall cause to be
filed at each office or agency maintained for the purpose of
conversion of this Preferred Stock, and shall cause to be delivered
by facsimile or email to eachHolder at its last facsimile number or
email address as it shall appear upon the stock books of the
Corporation, at least twenty (20) calendar days prior to the
applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, redemption, rights or
warrants, or if a record is not to be taken, the date as of which
the holders of the Common Stock of record to be entitled to such
dividend, distributions, redemption, rights or warrants are to be
determined or the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected
to become effective or close, and the date as of which it is
expected that holders of the Common Stock of record shall be
entitled to exchange their shares of the Common Stock for
securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or share
exchange, provided that the failure to deliver such notice or any
defect therein or in the delivery thereof shall not affect the
validity of the corporate action required to be specified in such
notice. To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information
regarding the Corporation, the Corporation shall simultaneously
file such notice with the Commission pursuant to a Current Report
on Form 8-K.
Section 8. Miscellaneous.
(a) Notices. Any and all notices or
other communications or deliveries to be provided by the Holders
hereunder shall be in writing and delivered personally, by
facsimile or e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Corporation, at the following
address: 373 Inverness Parkway, Suite 206, Englewood, Colorado
80112, Attention: Controller, facsimile number (720) 437-6527,
e-mail address btowne@aytubio.com, or such other facsimile number,
e-mail address or address as the Corporation may specify for such
purposes by notice to the Holders delivered in accordance with this
Section 8. Any and all notices or other communications or
deliveries to be provided by the Corporation hereunder shall be in
writing and delivered personally, by facsimile, e-mail, or sent by
a nationally recognized overnight courier service addressed to each
Holder at the facsimile number, e-mail address or address of such
Holder appearing on the books of the Corporation and the Transfer
Agent. Any notice or other communication or deliveries hereunder
shall be deemed given and effective on the earliest of (i) the date
of transmission, if such notice or communication is delivered via
facsimile at the facsimile number or e-mail at the e-mail address
set forth in this Section 8 prior to 5:30 p.m. (New York City time)
on any date, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number or e-mail at the e-mail address
set forth in this Section on a day that is not a Trading Day or
later than 5:30 p.m. (New York City time) on any Trading Day, (iii)
the second Trading Day following the date of mailing, if sent by
U.S. nationally recognized overnight courier service, or (iv) upon
actual receipt by the party to whom such notice is required to be
given.
(b) Absolute Obligation. Except as
expressly provided herein, no provision of this Certificate of
Designation shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay liquidated
damages, and accrued dividends, as applicable, on the shares of
Preferred Stock at the time, place, and rate, and in the coin or
currency, herein prescribed.
(c) Lost or Mutilated Preferred Stock
Certificate. If a Holder’s Preferred Stock certificate
shall be mutilated, lost, stolen or destroyed, the Corporation
shall execute and deliver, in exchange and substitution for and
upon cancellation of a mutilated certificate, or in lieu of or in
substitution for a lost, stolen or destroyed certificate, a new
certificate for the shares of Preferred Stock so mutilated, lost,
stolen or destroyed, but only upon receipt of evidence of such
loss, theft or destruction of such certificate, and of the
ownership thereof reasonably satisfactory to the
Corporation.
(d) Governing Law. All questions
concerning the construction, validity, enforcement and
interpretation of this Certificate of Designation shall be governed
by and construed and enforced in accordance with the internal laws
of the State of Delaware without regard to the principles of
conflict of laws thereof. All legal proceedings concerning the
interpretation, enforcement and defense of the transactions
contemplated by this Certificate of Designation (whether brought
against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in
the Court of Chancery of the State of Delaware or, to the extent
such court does not have subject matter jurisdiction, the United
States District Court for the District of Delaware or, to the
extent that neither of the foregoing courts has jurisdiction, the
Superior Court of the State of Delaware in Wilmington, Delaware
(the “Delaware
Courts”). The Corporation and each Holder hereby
irrevocably submits to the exclusive jurisdiction of the Delaware
Courts for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such Delaware Courts, or
such Delaware Courts are improper or inconvenient venue for such
proceeding. The Corporation and each Holder hereby irrevocably
waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect
for notices to it under this Certificate of Designation and agrees
that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any
other manner permitted by
applicable law. The Corporation and each Holder hereto hereby
irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Certificate of Designation or
the transactions contemplated hereby. If the Corporation or any
Holder shall commence an action or proceeding to enforce any
provisions of this Certificate of Designation, then the prevailing
party in such action or proceeding shall be reimbursed by the other
party for its attorneys’ fees and other costs and expenses
incurred in the investigation, preparation and prosecution of such
action or proceeding.
(e) Waiver. Any waiver by the
Corporation or a Holder of a breach of any provision of this
Certificate of Designation shall not operate as or be construed to
be a waiver of any other breach of such provision or of any breach
of any other provision of this Certificate of Designation or a
waiver by any other Holders. The failure of the Corporation or a
Holder to insist upon strict adherence to any term of this
Certificate of Designation on one or more occasions shall not be
considered a waiver or deprive that party (or any other Holder) of
the right thereafter to insist upon strict adherence to that term
or any other term of this Certificate of Designation on any other
occasion. Any waiver by the Corporation or a Holder must be in
writing.
(f) Severability. If any provision
of this Certificate of Designation is invalid, illegal or
unenforceable, the balance of this Certificate of Designation shall
remain in effect, and if any provision is inapplicable to any
Person or circumstance, it shall nevertheless remain applicable to
all other Persons and circumstances. If it shall be found that any
interest or other amount deemed interest due hereunder violates the
applicable law governing usury, the applicable rate of interest due
hereunder shall automatically be lowered to equal the maximum rate
of interest permitted under applicable law.
(g) Next Business Day. Whenever any
payment or other obligation hereunder shall be due on a day other
than a Business Day, such payment shall be made on the next
succeeding Business Day.
(h) Headings. The headings
contained herein are for convenience only, do not constitute a part
of this Certificate of Designation and shall not be deemed to limit
or affect any of the provisions hereof.
(i) Status of Converted or Redeemed
Preferred Stock. If any shares of Preferred Stock shall be
converted, redeemed or reacquired by the Corporation, such shares
shall resume the status of authorized but unissued shares of
preferred stock and shall no longer be designated as Series G
Convertible Preferred Stock.
*********************
RESOLVED, FURTHER,
that the Chairman, the president or any vice-president, and the
secretary or any assistant secretary, of the Corporation be and
they hereby are authorized and directed to prepare and file this
Certificate of Designation of Preferences, Rights and Limitations
in accordance with the foregoing resolution and the provisions of
Delaware law.
[Remainder of Page Intentionally Left
Blank]
IN
WITNESS WHEREOF, the undersigned have executed this Certificate
this 30th day of October, 2019.
/s/ Joshua R. Disbrow
|
|
/s/ David A. Green
|
Name:
Joshua R. Disbrow
|
|
Name:
David A. Green
|
Title:
Chairman and Chief Executive Officer
|
|
Title:
Chief Financial Officer, Secretary, and Treasurer
|
ANNEX
A
NOTICE
OF CONVERSION
(TO BE
EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF
PREFERRED STOCK)
The
undersigned hereby elects to convert the number of shares of Series
G Convertible Preferred Stock indicated below into shares of common
stock, par value $0.0001 per share (the “Common Stock”), of Aytu
BioScience, Inc., a Delaware corporation (the “Corporation”), according
to the conditions hereof, as of the date written below. If shares
of Common Stock are to be issued in the name of a Person other than
the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. No fee will be charged to the Holders
for any conversion, except for any such transfer
taxes.
Conversion
calculations:
Date to
Effect Conversion:
|
Number
of shares of Preferred Stock owned prior to Conversion:
|
Number
of shares of Preferred Stock to be Converted:
|
Stated
Value of shares of Preferred Stock to be Converted:
|
Number
of shares of Common Stock to be Issued:
|
Applicable
Conversion Price:
|
Number
of shares of Preferred Stock subsequent to Conversion:
|
Address
for Delivery:
|
or
|
DWAC
Instructions:
|
Broker
no:
|
Account
no:
|
|
[HOLDER]
|
|
By:
|
|
Name:
|
|
Title:
|