Beyond Commerce, Inc 8-K, filed Mar 8, 2021
Beyond Commerce, Inc. (BYOC)
About this 8-K
Beyond Commerce, Inc filed this 8-K on March 8, 2021, reporting on events of March 2, 2021.
Items reported
- Item 3.03: Change to shareholders' rights
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): March 2, 2021
Beyond Commerce, Inc.
(Exact name of Registrant as specified in its charter)
Nevada |
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| 98-0512515 |
(State or other jurisdiction of incorporation) |
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| (IRS Employer Identification No.) |
3773 Howard Hughes Pkwy, Suite 500,
Las Vegas, Nevada, 89169
(Address of principal executive offices, including zip code)
(702) 675-8022
(Registrant’s telephone number, including area code)
Check the appropriate box below if the 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
[ ] | Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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[ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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[ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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[ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)). |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
| Trading Symbol(s) |
| Name of each exchange on which registered |
None |
| None |
| None |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company [ ]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
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Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Item 5.03 below is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On March 2, 2021, Beyond Commerce, Inc. (the “Company”) received confirmation of filing with the Secretary of State of the State of Nevada of a Certificate of Correction, clarifying that the Company’s Certificate of Amendment to its Articles of Incorporation filed on November 16, 2020 effected an increase in the number of shares of common stock authorized, without impacting the number of shares of preferred stock authorized. Additionally, on March 2, 2021, the Company filed with the Secretary of State of the State of Nevada of a Certificate of Correction, clarifying that the Company’s Certificate of Amendment to its Articles of Incorporation filed on April 21, 2020 effected an increase in the number of shares of common stock authorized, without impacting the number of shares of preferred stock authorized.
On March 2, 2021, the Company filed with the Secretary of State of the State of Nevada a Certificate of Amendment effecting the amendment and restatement of its Articles of Incorporation (the “Amended and Restated Articles”). The Amended and Restated Articles reflected amendments that effected (i) the increase of the number of shares of common stock that the Company is authorized to issue to ten billion (10,000,000,000); (ii) the 1-for-1,000,000 reverse stock split of the shares of Series A Preferred Stock, with ratable adjustment to the conversion and voting terms; and (iii) the reduction of the number of shares of preferred stock that the Company is authorized to issue to sixty million four hundred (60,000,400).
On March 5, 2021, the Company filed with the Secretary of State of the State of Nevada a Certificate of Designations, Rights and Preferences for shares of the Company’s Series C Preferred Stock (the “Series C Designations”). The Series C Designations provide for the issuance of up to 50,000,000 shares of Series C Preferred Stock, with each such share convertible into 10,000 shares of the Company’s common stock. The shares of Series C Preferred Stock will vote together with the other classes of stock on an “as-converted” basis, subject to ownership limitations.
The foregoing descriptions of the Amended and Restated Articles and the Series C Designations do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01. Exhibits.
(d) Exhibits
Exhibit No. |
| Exhibit |
3.1 |
| Amended and Restated Articles of Incorporation, filed on March 2, 2021 |
3.2 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| BEYOND COMMERCE, INC. | |
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Dated: March 8, 2021 | By: | /s/ Geordan G. Pursglove |
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| Geordan G. Pursglove Chief Executive Officer, President and Director |
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BEYOND COMMERCE, INC.
ARTICLE I
NAME OF CORPORATION
The name of the Corporation is Beyond Commerce, Inc.
ARTICLE II
REGISTERED OFFICE AND RESIDENT AGENT
The address of the Corporation’s registered office in the state of Nevada is 3773 Howard Hughes Parkway, Suite 500S, Las Vegas, Nevada 89169 and the Corporation’s resident agent at such address is Nevada is Incorp Services, Inc.
ARTICLE III
DURATION
The Corporation shall have perpetual existence.
ARTICLE IV
PURPOSE
The purpose of the Corporation is to engage in any activity within the purposes for which corporations may be incorporated and organized under Chapter 78 of the Nevada Revised Statutes, and to do all other things incidental thereto which are not forbidden by law or by these Articles of Incorporation.
ARTICLE V
POWERS
The Corporation has been formed pursuant to Chapter 78 of the Nevada Revised Statutes. The powers of the Corporation shall be those powers granted under the Nevada Revised Statues, including Sections 78.060 and 78.070 thereof.
ARTICLE VI
CAPITAL STOCK
A. CLASSES OF STOCK
The aggregate number of shares which the Corporation shall have the authority to issue shall be Ten Billion Sixty Million Four Hundred (10,060,000,400) shares as follows:
i.Common Stock: Of the total authorized capital stock, the Corporation shall have the authority to issue Ten Billion (10,000,000,000) shares having a par value of $0.001 each, which shares shall be designated “Common Stock.”
ii.Preferred Stock: Of the total authorized capital stock, the Corporation shall have the authority to issue Sixty Million Four Hundred (60,000,400) shares having a par value of $0.001 each, which shares shall be designated “Preferred Stock.” Of the 60,000,400 shares of Preferred Stock that the Corporation is authorized to issue, (i) Two Hundred Forty-nine and 9,999/10,000 (249.9999) shall be designated Series A Preferred Stock, $0.001 par value per share, having such preferences and rights as are described below; (ii) Fifty-one (51) shares shall be designated Series B Preferred Stock, $0.001 par value per share, having such preferences and rights as are described in Section iv. below;
(iii) Sixty Million Ninety-nine and 1/10,000 (60,000,099.0001) shares shall remain available for designation upon the determination of the Board of Directors in accordance with the Corporation's Articles of Incorporation, as amended.
B. ISSUANCE OF PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby expressly authorized to provide for the issue of all or any of the shares of the Preferred Stock in one or more series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such shares and as may be permitted by the Nevada Revised Statutes. The Board of Directors is also expressly authorized to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.
C. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF COMMON STOCK.
1. Dividend Rights. Subject to the prior or equal rights of holders of all classes of stock at the time outstanding having prior or equal rights as to dividends, the holders of the Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of any assets of the Corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors.
2. Voting Rights. Each holder of the Common Stock shall be entitled to one vote for each share of Common Stock standing in his, her or its name on the books of the Corporation.
3. Liquidation. Upon the dissolution, liquidation or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and subject to the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the distribution of assets of the Corporation upon such dissolution, liquidation or winding up of the Corporation, the holders of Common Stock shall be entitled to receive the remaining assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares held by them.
4. Stock Rights and Options. The Corporation shall have the power to create and issue rights, warrants or options entitling the holders thereof to purchase from the Corporation any shares of its capital stock of any class or classes, upon such terms and conditions and at such time and prices as the board of directors or a committee thereof may approve, which terms and conditions shall be incorporated in an instrument or instruments evidencing such rights, warrants or options. In the absence of fraud, the judgment of the board of directors or a committee thereof as to the adequacy of consideration for the issuance of such rights, warrants or options and the sufficiency thereof shall be conclusive.
D. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF SERIES A PREFERRED STOCK.
1. Designation. The designation of said series of preferred stock shall be Series A Preferred Stock, $0.001 par value per share.
2. Number of Shares. The number of shares of Series A Preferred Stock authorized shall be Two Hundred Forty-nine and 9,999/10,000 (249.9999).
3. Liquidation. The Series A Preferred Stock is entitled, in the event of any voluntary liquidation, dissolution or winding up of the Corporation, to receive payment or distribution of a preferential amount before any payments or distributions are received by any class or series of common stock.
4. Dividend Rights. Subject to the prior or equal rights of holders of all classes of stock at the time outstanding having prior or equal rights as to dividends and ranking ahead of the Common Stock, the holders of the Series A Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors, out of any assets of the Corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors.
5. Voting Rights. Each holder of the Series A Preferred Stock shall be entitled to three million (3,000,000) votes for each share of Series A Preferred Stock standing in his, her or its name on the books of the Corporation.
6. Conversion. Each share of Series A Preferred Stock is convertible, at the option of the holder, into one million shares of Common Stock.
E. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF SERIES B PREFERRED STOCK.
I.NAME OF THE CORPORATION
Beyond Commerce, Inc.
| II. | DESIGNATION AND AMOUNT; DIVIDENDS |
A.Designation. The designation of said series of preferred stock shall be Series B Preferred Stock, $0.001 par value per share (the “Series B Preferred Stock”).
B.Number of Shares. The number of shares of Series B Preferred Stock authorized shall be Fifty-One (51) shares. Each share of Series B Preferred Stock shall have a stated value equal to $0.001 (as may be adjusted for any stock dividends, combinations or splits with respect to such shares) (the “Series B Stated Value”).
C.Dividends. The Series B Preferred Stock is not entitled to receive dividends.
III. LIQUIDATION RIGHTS
The Series B Preferred Stock is entitled, in the event of any voluntary liquidation, dissolution or winding up of the Corporation, to receive payment or distribution of a preferential amount before any payments or distributions are received by any class or series of common stock.
IV.CONVERSION
No conversion of the Series B Preferred Stock is permitted.
V. RANK
All shares of the Series B Preferred Stock shall rank (i) senior to the Corporation’s common stock, par value $0.001 per share (“Common Stock”), and any other class or series of capital stock of the Corporation hereafter created, except as otherwise provided in clauses (ii) and (iii) of this Article V, (ii) pari passu with any class or series of capital stock of the Corporation hereafter created and specifically ranking, by its terms, on par with the Series B Preferred Stock and (iii) junior to any class or series of capital stock of the Corporation hereafter created specifically ranking, by its terms, senior to the Series B Preferred Stock, in each case as to distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary.
VI.VOTING RIGHTS
One (1) share of the Series B Preferred Stock shall have voting rights equal to (x) 0.019607 multiplied by the total number of votes of the issued and outstanding shares of Common Stock and other Preferred Stock eligible to vote at the time of the respective vote (the “Numerator”), divided by (y) 0.49, minus (z) the Numerator. For the avoidance of doubt, if the total number of votes of the issued and outstanding shares of Common Stock and other Preferred Stock eligible to vote at the time of the respective vote is 5,000,000, the voting rights of one share of
the Series B Preferred Stock shall be equal to 102,036 (e.g., ((0.019607 x 5,000,000) / 0.49) – (0.019607 x 5,000,000) = 102,036).
With respect to all matters upon which stockholders are entitled to vote or to which stockholders are entitled to give consent, the holders of the outstanding shares of Series B Preferred Stock shall vote together with the holders of Common Stock without regard to class, except as to those matters on which separate class voting is required by applicable law or the Corporation’s Articles of Incorporation or by-laws.
VII.PROTECTION PROVISIONS
So long as any shares of Series B Preferred Stock are outstanding, the Corporation shall not, without first obtaining the unanimous written consent of the holders of Series B Preferred Stock, alter or change the rights, preferences or privileges of the Series B Preferred Stock so as to affect adversely the holders of Series B Preferred Stock.
Should any holder of Series B Preferred Stock cease to be an officer or director of the Corporation at any time and for any reason, such holders’ Series B Preferred Stock shall be immediately cancelled.
VIII.MISCELLANEOUS
A.Status of Redeemed Stock. In case any shares of Series B Preferred Stock shall be redeemed or otherwise repurchased or reacquired, the shares so redeemed, repurchased, or reacquired shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series B Preferred Stock.
B.Lost or Stolen Certificates. Upon receipt by the Corporation of (i) evidence of the loss, theft, destruction or mutilation of any Series B Preferred Stock Certificate(s) and (ii) in the case of loss, theft or destruction, indemnity (with a bond or other security) reasonably satisfactory to the Corporation, or in the case of mutilation, the Series B Preferred Stock Certificate(s) (surrendered for cancellation), the Corporation shall execute and deliver new Series B Preferred Stock Certificates.
C.Waiver. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any right of the holders of Series B Preferred Stock granted hereunder may be waived as to all shares of Series B Preferred Stock (and the holders thereof) upon the unanimous written consent of the holders of the Series B Preferred Stock.
D.Notices. Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally, by nationally recognized overnight carrier or by confirmed facsimile transmission, and shall be effective five (5) days after being placed in the mail, if mailed, or upon receipt or refusal of receipt, if delivered personally or by nationally recognized overnight carrier or confirmed facsimile transmission, in each case addressed to a party as set forth below, or such other address and telephone and fax number as may be designated in writing hereafter in the same manner as set forth in this Section.
If to the Corporation:
Beyond Commerce, Inc.
3773 Howard Hughes Pkwy, Suite: 500
Las Vegas, NV 89169
Attention: Geordan G. Pursglove
If to the holders of Series B Preferred Stock, to the address listed in the Corporation’s books and records.
ARTICLE VII
PLACE OF MEETINGS; CORPORATE BOOKS
Subject to the laws of the State of Nevada, the stockholders and the directors shall have power to hold their meetings and to maintain the books of the Corporation outside the state of Nevada, at such place or places as may from time to time be designated in the Corporation’s Bylaws or by appropriate resolution.
ARTICLE VIII
AMENDMENT OF ARTICLES
The provisions of these Articles of Incorporation may be amended, altered or repealed from time to time to the extent and in the manner prescribed by the laws of the state of Nevada, and additional provisions authorized by such laws as are then in force may be added. All rights herein conferred on the directors, officers and stockholders are granted subject to this reservation.
ARTICLE IX
LIMITED LIABILITY OF OFFICERS AND DIRECTORS
To the fullest extent permitted by applicable law, the officers and directors of the Corporation shall not be personally liable to the Corporation or its stockholders for damages for breach of fiduciary duty as a director or officer; provided, however, this limitation on personal liability shall not apply to acts or omissions which involve intentional misconduct, fraud, knowing violation of law, or unlawful distribution prohibited by Section 78.300 of the Nevada Revised Statutes.
The Corporation, to the full extent permitted by Chapter 78 of the Nevada Revised Statutes, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized hereby.
Any repeal or modification of this Article IX, shall not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts or omissions occurring before such repeal or modification of a person serving as a Director at the time of such repeal or modification.
BEYOND COMMERCE, INC.
CERTIFICATE OF DESIGNATIONS OF
PREFERENCES, POWERS, RIGHTS AND LIMITATIONS OF
SERIES C CONVERTIBLE PREFERRED STOCK
Pursuant to Section 78.1955 of the Nevada Revised Statutes (the “NRS”), Beyond Commerce, Inc., a company organized and existing under the State of Nevada (the “Corporation”),
DOES HEREBY CERTIFY that, the Board of Directors, by unanimous written consent of all members of the Board of Directors on March 5, 2021, duly adopted this Certificate of Designations of Preferences, Powers, Rights and Limitations of Series C Convertible Preferred Stock, by adoption of a resolution which reads as follows:
WHEREAS, the Certificate of Incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, comprised of 60,000,400 shares, $0.001 par value per share (the “Preferred Stock”), issuable from time to time in one or more series;
WHEREAS, the Board of Directors of the Corporation is authorized to fix the dividend rights, dividend rate, powers, 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;
WHEREAS, it is the desire of the Board of Directors of the Corporation, pursuant to its authority as aforesaid, to designate the rights, preferences, restrictions and other matters relating to the Series C Convertible Preferred Stock, which will consist of up to 50,000,000 shares of the Preferred Stock which the Corporation has the authority to issue, as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Preferred Stock shall have the following powers, rights, preferences, and restrictions as follows:
I.Terms of Preferred Stock.
A.Designation and Amount. A series of Preferred Stock is hereby designated as the Corporation’s Series C Convertible Preferred Stock, par value of $0.001 per share (the “Series C Preferred Stock”), the number of shares of which so designated are 50,000,000 shares of Series C Preferred Stock; which Series C Preferred Stock will not be subject to increase without any consent of the holders of the Series C Preferred Stock (each a “Holder” and collectively, the “Holders”) that may be required by applicable law.
B.Ranking and Voting.
1.Ranking. The Series C Preferred Stock will, with respect to dividend rights and rights upon liquidation, winding-up or dissolution, rank: (a) pari passu with the Corporation’s Common Stock, $0.001 par value per share (“Common
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Stock”); (b) junior to all other series of Preferred Stock, as such may be designated as of the date of this Designation, or which may be designated by the Corporation after the date of this Designation (the “Other Preferred”), and (c) junior to all existing and future indebtedness of the Corporation.
2.Voting. Holders of the Series C Preferred Stock shall vote on all matters requiring a vote of the shareholders of the Corporation, together with the holders of shares of Common Stock and other classes of preferred stock entitled to vote, as a single class. Subject to the applicable beneficial ownership limitation in Section I.F.3 below, each Holder shall be entitled to the whole number of votes equal to the number of shares of Common Stock into which such holder’s Preferred Shares would be convertible using the record date for determining the stockholders of the Corporation eligible to vote on such matters as the date as of which the number of Conversion Shares is calculated. Holders of the Series C Preferred Stock will also be entitled to vote as a separate class with respect to any matter as to which such voting rights are required by applicable law.
C.Term. The term of the Series C Preferred Stock will be perpetual.
D.Dividends. The Series C Preferred Stock will not accrue any dividends, and no dividends will be payable with respect to any shares of Series C Preferred Stock.
E.Redemption. The Series C Preferred Stock is not redeemable, and the Corporation will not be required to redeem any shares of Series C Preferred Stock for cash under any circumstances.
F.Conversion.
1.Fixed Conversion Price. Each share of Series C Preferred Stock is convertible into 10,000 shares of Common Stock.
2.Mechanics of Conversion.
a.One or more shares of the Series C Preferred Stock may be converted, in part or in whole, into shares of Common Stock, at any time or times after the Issuance Date that sufficient authorized and unissued shares of Common Stock are available, in the sole and absolute discretion of Holder, by delivery of one or more written notices to the Corporation or its transfer agent (each, a “Conversion Notice”), of the Holder’s election to convert any or all of its Series C Preferred Stock. Each Conversion Notice will set forth the number of shares of Series C Preferred Stock being converted, and the number of shares of Common Stock due upon such conversion (”Conversion Shares”).
b.As soon as practicable, and in any event within 1 Trading Day of receipt of a Conversion Notice, time being of the essence, the Corporation will do all of the following: (i) transmit the Conversion Notice by facsimile or electronic mail to the Holder, and to the Corporation’s transfer agent (the “Transfer Agent”) with instructions to comply with the Conversion Notice; (ii) either
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(A) if the Corporation is approved through The Depository Trust Corporation (“DTC”), authorize and instruct the credit by the Transfer Agent the aggregate number of Conversion Shares set forth in the Conversion Notice, to Holder’s or its designee’s balance account with the DTC Fast Automated Securities Transfer (FAST) Program, through its Deposit/Withdrawal at Custodian (DWAC) system, or (B) only if the Corporation is not approved through DTC, issue and surrender to a common carrier for overnight delivery to the address as specified in the Conversion Notice a certificate registered in the name of Holder or its designee, for the number of Conversion Shares set forth in the Conversion Notice, bearing no restrictive legend unless a registration statement covering the Conversion Shares is not effective and neither Company nor Investor provides an opinion of counsel to the effect that Conversion Shares may be issued without restrictive legend; and (iii) if it contends that the Conversion Notice is in any way incorrect, a through explanation of why and its own calculation, or the Conversion Notice will conclusively be deemed correct for all purposes. The Corporation will at all times diligently take or cause to be taken all actions reasonably necessary to cause the Conversion Shares to be issued as soon as practicable.
c.If the Corporation for any reason does not issue or cause to be issued to the Holder within three (3) Trading Days after the date of a Conversion Notice, the number of Conversion Shares stated in the Conversion Notice, then, in addition to all other remedies available to the Holder, as liquidated damages and not as a penalty, the Corporation will pay in cash to the Holder on each day after such 3rd Trading Day that the issuance of such Conversion Shares is not timely effected an amount equal to 2% of the product of (i) the aggregate number of Conversion Shares not issued to the Holder on a timely basis and to which the Holder is entitled and (ii) the highest Closing Price of the Common Stock between the date on which the Corporation should have issued such shares to the Holder and the actual date of receipt of Conversion Shares by Holder. It is intended that the foregoing will serve to reasonably compensate Holder for any delay in delivery of Conversion Shares, and not as punishment for any breach by the Corporation. The Corporation acknowledges that the actual damages likely to result from delay in delivery are difficult to estimate and would be difficult for Holder to prove.
d.Notwithstanding any other provision: all of the requirements of this Section I.F are each independent covenants; the Corporation’s obligations to issue and deliver Conversion Shares upon any Conversion Notice are absolute, unconditional and irrevocable; any breach or alleged breach of any representation or agreement, or any violation or alleged violation of any law or regulation, by any party or any other person will not excuse full and timely performance of any of the Corporation’s obligations under these sections; and under no circumstances may the Corporation seek or obtain any temporary, interim or preliminary injunctive or equitable relief to prevent or interfere with any issuance of Conversion Shares to Holder.
e.If for any reason whatsoever Holder does not timely receive the number of Conversion Shares stated in any Conversion Notice, Holder will be entitled to a compulsory remedy of immediate specific performance, temporary,
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interim and, preliminary and final injunctive relief requiring Corporation and its transfer agent, attorneys, officers and directors to immediately issue and deliver the number of Conversion Shares stated by Holder, which requirement will not be stayed for any reason, without the necessity of posting any bond, and which Corporation may not seek to stay or appeal.
f.No fractional shares of Common Stock are to be issued upon conversion of Series C Preferred Stock. The Holder will not be required to deliver the original certificates for the Series C Preferred Stock in order to effect a conversion hereunder. The Corporation will pay any and all taxes which may be payable with respect to the issuance and delivery of any Conversion Shares.
3.Stock Splits. If the Corporation at any time on or after the filing of this Certificate of Designations subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the applicable number of Conversion Shares due upon conversion will be proportionately increased. If the Corporation at any time on or after such Issuance Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the applicable number of Conversion due upon conversion will be proportionately decreased. Any adjustment under this Section will automatically become effective when the subdivision or combination becomes effective.
4.Rights. In addition to any adjustments pursuant to Section I.F.3, if at any time the Corporation grants, issues or sells any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which Holder could have acquired if Holder had held the number of shares of Common Stock acquirable upon conversion of all Preferred Stock held by Holder immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, 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 grant, issue or sale of such Purchase Rights.
G.Notices. The holders of shares of Series C Preferred Stock are entitled to the same rights as the holders of Common Stock with respect to rights to receive notices, reports and audited accounts from the Company and with respect to attending stockholder meetings.
H.Beneficial Ownership Limitation. Notwithstanding any other provision, at no time may the Corporation issue shares of Common Stock to Holder which, when aggregated with all other shares of Common Stock then deemed beneficially owned by Holder, would result in Holder owning more than 4.99% of all Common Stock outstanding immediately after giving effect to such issuance, as determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that Holder may increase or
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have increased such amount to 9.99% (but in no event exceeding 9.99% at any one time) upon not less than 61 days’ prior notice to the Corporation. To the extent that any conversion would otherwise result in exceeding the beneficial ownership limitation set forth in the preceding sentence, the Conversion Notice will specify the number of shares that may be delivered without exceeding the limitation, and any issuance beyond such extent will be held in abeyance until such time as it would not result in Holder exceeding the beneficial ownership limitation. No provision of this paragraph may be waived by Holder or the Corporation.
II.General.
A.Notices. Any and all notices to the Corporation will be addressed to the Corporation’s Chief Executive Officer at the Corporation’s principal place of business on file with the Secretary of State of the State of Nevada. Any and all notices or other communications or deliveries to be provided by the Corporation to any Holder hereunder will be in writing and delivered personally, by electronic mail or facsimile, sent by a nationally recognized overnight courier service addressed to each Holder at the electronic mail, facsimile telephone number or address of such Holder appearing on the books of the Corporation, or if no such electronic mail, facsimile telephone number or address appears, at the principal place of business of the Holder. Any notice or other communication or deliveries hereunder will be deemed given and effective on the earliest of (1) the date of transmission, if such notice or communication is delivered via facsimile or electronic mail prior to 5:30 p.m. Eastern time, (2) the date after the date of transmission, if such notice or communication is delivered via facsimile or electronic mail later than 5:30 p.m. but prior to 11:59 p.m. Eastern time on such date, (3) the second business day following the date of mailing, if sent by nationally recognized overnight courier service, or (4) upon actual receipt by the party to whom such notice is required to be given, regardless of how sent.
B.Lost or Mutilated Preferred Stock Certificate. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered Holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing shares of Series C Preferred Stock, and in the case of any such loss, theft or destruction upon receipt of indemnity reasonably satisfactory to the Corporation (provided that if the Holder is a financial institution or other institutional investor its own agreement will be satisfactory) or in the case of any such mutilation upon surrender of such certificate, the Corporation will, at its expense, execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.
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C.Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designations and will not be deemed to limit or affect any of the provisions hereof.
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NOW THEREFORE BE IT RESOLVED, that the Designation is hereby approved, affirmed, confirmed, and ratified; and it is further
RESOLVED, that each officer of the Corporation be and hereby is authorized, empowered and directed to execute and deliver, in the name of and on behalf of the Corporation, any and all documents, and to perform any and all acts necessary to reflect the Board of Directors approval and ratification of the resolutions set forth above; and it is further
RESOLVED, that in addition to and without limiting the foregoing, each officer of the Corporation and the Corporation’s attorney be and hereby is authorized to take, or cause to be taken, such further action, and to execute and deliver, or cause to be delivered, for and in the name and on behalf of the Corporation, all such instruments and documents as he may deem appropriate in order to effect the purpose or intent of the foregoing resolutions (as conclusively evidenced by the taking of such action or the execution and delivery of such instruments, as the case may be) and all action heretofore taken by such officer in connection with the subject of the foregoing recitals and resolutions be, and it hereby is approved, ratified and confirmed in all respects as the act and deed of the Corporation; and it is further
RESOLVED, that this Designation may be executed in several counterparts, each of which is an original; that it shall not be necessary in making proof of this Designation or any counterpart hereof to produce or account for any of the other.
IN WITNESS WHEREOF, the Corporation has caused this “Certificate of Designations of Preferences, Powers, Rights and Limitations of Series C Convertible Preferred Stock” to be duly executed and approved this 5th day of March, 2021.
By: | /s/ Geordan Pursglove |
Name: | Geordan Pursglove |
Its: | Chief Executive Officer |
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