MARA Holdings, Inc PRE 14A, filed Oct 2, 2023

MARA Holdings, Inc. (MARA)

PRE 14A 2023-10-02 For: 2023-10-02

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☒	Preliminary Proxy Statement
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☐	Definitive Proxy Statement
☐	Definitive Additional Materials
☐	Soliciting Material under §240.14a-12

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	1.	To increase the number of shares of common stock issuable under the Company’s 2018 Equity Incentive Plan by 15,000,000.

	2.	To provide the Board of Directors with the discretion to amend its Articles of Incorporation to change the name of the Company to MARA Holdings, Inc..

	3.	To provide the Board of Directors with the discretion to reincorporate the Company in the State of Delaware.

	4.	To transact such other business as may be properly brought before the 2023 Special Meeting and any adjournments thereof.

	By Order of the Board of Directors:

	/s/ Fred Thiel
	Fred Thiel,
	Chairman of the Board of Directors and Chief Executive Officer

	1.	To increase the number of shares of common stock issuable under the Company’s 2018 Equity Incentive Plan by 15,000,000.

	2.	To give the Board of Directors discretion to amend its Articles of Incorporation to change the name of the Company to MARA Holdings, Inc..

	3.	To give the Board of Directors discretion to reincorporate the Company in the State of Delaware.

	4.	To transact such other business as may be properly brought before the 2023 Special Meeting and any adjournments thereof.

Dated: October 2, 2023	By Order of the Board of Directors:

	/s/ Fred Thiel
	Fred Thiel
	Chairman of the Board of Directors

		Page
SPECIAL MEETING OF SHAREHOLDERS		1

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT		7

PROPOSAL NO. 1 – TO INCREASE THE NUMBER OF SHARES AVAILABLE FOR ISSUANCE UNDER OUR 2020 EQUITY INCENTIVE PLAN BY 15,000,000		9

PROPOSAL NO. 2 –TO GRANT THE BOARD DISCRETIONARY AUTHORITY TO AMEND THE COMPANY’S ARTICLES OF INCORPORATION TO CHANGE ITS NAME TO MARA HOLDINGS, INC.		11

PROPOSAL NO. 3 – TO GRANT THE COMPANY’S BOARD THE DISCRETIONARY AUTHORITY TO REINCORPORATE THE COMPANY IN THE STATE OF DELAWARE		12

PROPOSAL NO. 4 - OTHER MATTERS		32

Appendix A		A -1
Appendix B		B -1
Appendix C		C -1
Appendix D		D -1
Appendix E		E -1

	●	To vote in person. You may attend the 2023 Special Meeting and the Company will give you a ballot when you arrive.

	●	To vote by proxy by fax or internet. If you have fax or internet access, you may submit your proxy by following the instructions provided in this proxy statement, or by following the instructions provided with your proxy materials and on the enclosed proxy card or voting instruction card.

	●	To vote by proxy by mail. You may submit your proxy by mail by completing and signing the enclosed proxy card and mailing it in the enclosed envelope. Your shares will be voted as you have instructed.

●	*Proposal 1* - To approve an increase in the number of shares available in the Company’s 2018 Equity Incentive Plan by 15,000,000 shares. “FOR” votes from the holders of a majority of the shares of the Company’s common stock present in person or represented by proxy and entitled to vote on the matter at the 2023 Special Meeting are required to approve this proposal.
●	*Proposal 2* – To grant the Company’s Board the discretionary authority to amend its Articles of Incorporation to change the Company’s name to MARA Holdings, Inc.. “FOR” votes from the holders of a majority in voting power of the outstanding stock entitled to vote thereon at the 2023 Special Meeting are required to approve this proposal.
●	*Proposal 3 –* To reincorporate the Company in the State of Delaware. “FOR” votes from the holders of a majority in voting power of the outstanding stock entitled to vote thereon at the 2023 Special Meeting are required to approve this proposal.
●	*Proposal 4* – To transact such other business as may be properly brought before the Special Meeting and any adjournments thereof. “FOR” votes from the holders of a majority of the shares of the Company’s common stock present in person or represented by proxy and entitled to vote on the matter at the 2023 Special Meeting are required to approve this proposal.

●	shareholders whose shares are registered in their own name should contact our transfer agent, Equity Stock Transfer LLC, and inform them of their request by calling them at (212) 575-5757 or writing them at 237 W. 37^thStreet, Suite 602, New York, NY 10018.

●	shareholders whose shares are held by a broker or other nominee should contact such broker or other nominee directly and inform them of their request, shareholders should be sure to include their name, the name of their brokerage firm and their account number.

Amount and Nature of Beneficial Ownership as of September 29, 2023
									Percentage
	Common								of Common
Name and Address of Beneficial Owner	Stock		RSUs		Warrants		Total		Stock (%)

Officers and Directors

Fred Thiel (CEO and Executive Chairman) (1)		260,405		624,950		-		885,355		*	%

James Crawford (COO) (2)		230,641		112,500		-		343,141		*	%

Salman Khan (CFO) (7)		-		297,247		-		297,247		*

John Lee (Chief Accounting Officer) (4)		-		120,000		-		120,000		*

Adam Swick (Chief Growth Officer) (5)		18,679		211,442		-		230,121		*

Ashu Swami (Chief Technology Officer) (6)		10,758		50,000		-		60,758		*

Kevin DeNuccio		207,552		-		-		207,552		*

Georges Antoun		55,384		-		-		55,384		*

Jay Leupp		62,552		-		-		62,552		*

Sarita James		37,519		-		-		37,519		*

Said Ouissal		10,217		-		-		10,217		*

Doug Mellinger		62,486		-		-		62,486		*

All Directors and Executive Officers (12 persons)		956,193		1,416,139		0		2,372,332		1.13	%

Percentile Range	Payout
More than 85.0%		200.0	%
75%-84%		175.0	%
65%-74%		150.0	%
55%-64%		125.0	%
45%-54%		100.0	%
35%-44%		75.0	%
25%-34%		50.0	%
15%-24%		25.0	%
Less than 15%		0.0	%

	●	If and when the Reincorporation becomes effective, all of the issued and outstanding shares of Common Stock of Company will be automatically converted into issued and outstanding shares of common stock of Company-Delaware, without any action on the part of our stockholders. We will continue to file periodic reports and other documents with the SEC. The Reincorporation will not change the respective positions of the Company or stockholders under federal securities laws. Shares of our common stock that are freely tradable prior to the Reincorporation will continue to be freely tradable after the Reincorporation, and shares of our common stock that are subject to restrictions prior to the Reincorporation will continue to be subject to the same restrictions after the Reincorporation. For purposes of computing compliance with the holding period requirement of Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), stockholders will be deemed to have acquired the Company-Delaware common stock on the date they acquired their shares of Company common stock.

	●	The common stock of Company-Delaware will continue to be quoted on the Nasdaq Capital Market with the same trading symbol (“MARA”).

	●	Following the Reincorporation, all of our employee benefit and incentive plans will become Company-Delaware plans, and each option, equity award or other right issued under such plans will automatically be converted into an option, equity award or right to purchase or receive the same number of shares of Company-Delaware common stock, at the same price per share, upon the same terms and subject to the same conditions as before the Reincorporation.

Provision	NRS and Nevada Articles and Nevada Bylaws	DGCL and Delaware Certificate of Incorporation and Delaware Bylaws
*Amendment of Charter Documents*	Nevada law requires the adoption of a resolution by the corporation’s board of directors followed by the affirmative vote of the majority of the voting power of the corporation.	Delaware law requires the adoption of a resolution by the corporation’s board of directors followed by the affirmative vote of the majority of shares present in person or represented by proxy and entitled to vote to approve any amendment to the certificate of incorporation, unless a greater percentage vote is required by the certificate of incorporation. Where a separate vote by class or series is required, the affirmative vote of a majority of the shares of such class or series is required unless the certificate of incorporation requires a greater percentage vote. Further, Delaware law states that if an amendment would (i) increase or decrease the aggregate number of authorized shares of a class, (ii) increase or decrease the par value of shares of a class, or (iii) alter or change the powers, preferences or special rights of a particular class or series of stock so as to affect them adversely, the class or series so affected shall be given the power to vote as a class notwithstanding the absence of any specifically enumerated power in the certificate of incorporation. DGCL Section 242.

	If any proposed amendment would adversely alter or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class or series adversely affected by the amendment. NRS 78.390.	The Delaware Certificate of Incorporation provides that the affirmative vote of the holders of at least a majority of the voting power of the capital stock of the Corporation entitled to vote thereon shall be required to alter, amend or repeal, or to adopt any provision inconsistent with Articles V, VI, VII, IX.

	The Nevada Articles of Incorporation is consistent with the NRS.

*Stockholder Action by Written Consent*	Nevada law provides that, unless the articles of incorporation or bylaws otherwise provide, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if the holders of outstanding stock having at least the minimum number of votes that would be necessary to authorize or take such action at a meeting consent to the action in writing. NRS 78.320.	Delaware law provides that, unless the certificate of incorporation provides otherwise, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if the holders of outstanding stock having at least the minimum number of votes that would be necessary to authorize or take such action at a meeting consents to the action in writing. In addition, Delaware law requires the corporation to give prompt notice of the taking of corporate action without a meeting by less than unanimous written consent to those stockholders who did not consent in writing. DGCL Section 228.

	The Nevada Bylaws do not change this statutory rule.	The Delaware Certificate of Incorporation and Delaware Bylaws do not allow stockholders to act by written consent, and therefore differ from the Nevada Bylaws.

*Limitation on Director Liability*	Under Nevada law, unless the articles of incorporation or an amendment thereto (filed on or after October 1, 2003) provides for greater individual liability, a director or officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that: (a) the director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer; and (b) the breach of those duties involved intentional misconduct, fraud, or a knowing violation of law. NRS 78.138.	Under Delaware law, if a corporation’s certificate of incorporation so provides, the personal liability of a director for breach of fiduciary duty as a director may be eliminated or limited. A corporation’s certificate of incorporation, however, may not limit or eliminate a director’s personal liability (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, (c) for the payment of unlawful dividends, stock repurchases or redemptions, or (d) for any transaction in which the director received an improper personal benefit. DGCL Section 102.

	Consistent with this statutory rule, the Nevada Articles of Incorporation provide that the personal liability of the directors of the corporation is eliminated to the fullest extent permitted by the NRS. The Nevada Bylaws do not change this statutory rule.	Consistent with this statutory rule, the Delaware Certificate of Incorporation and the Delaware Bylaws limit the personal liability of a director for breach of fiduciary duty as permitted under the DGCL. Delaware law is more extensive in the enumeration of actions under which we may not eliminate a director’s personal liability.

*Control Share Acquisition Statute*	Under the NRS, an acquiring person who acquires a controlling interest in an issuing corporation is prohibited from exercising voting rights on any control shares unless such voting rights are conferred by a majority vote of the disinterested stockholders of the issuing corporation at a special or annual meeting of stockholders. Unless otherwise provided in the articles of incorporation or the bylaws, if the control shares are accorded full voting rights and the acquiring person acquires control shares with a majority or more of all the voting power, any stockholder, other than the acquiring person, who does not vote in favor of authorizing voting rights for the control shares is entitled to dissent and demand payment of the fair value of his or her shares. A controlling interest means the ownership of outstanding voting shares of an issuing corporation sufficient to enable the acquiring person, directly or indirectly and individually or in association with others, to exercise: (i) one-fifth or more but less than one-third; (ii) one-third or more but less than a majority; or (iii) a majority or more, of all the voting power of the corporation in the election of directors. Control shares means those outstanding voting shares of an issuing corporation which an acquiring person: (a) acquires in an acquisition or offer to acquire in an acquisition; and (b) acquires within 90 days immediately preceding the date when the acquiring person became an acquiring person. The control share acquisition statute applies to any acquisition of a controlling interest in a Nevada corporation with 200 or more stockholders of record, at least 100 of whom have addresses in Nevada, unless the articles of incorporation or bylaws of the corporation in effect on the 10th day following the acquisition of a controlling interest by an acquiring person provide that the provisions of those sections do not apply. NRS 78.378-.3793.	Delaware does not have a similar statute, and consistent with Delaware law, neither the Delaware Certificate of Incorporation nor the Delaware Bylaws will contain a provision similar to the NRS control share acquisition statute.

	The Nevada Bylaws expressly opted out of the provisions in the NRS pertaining to the acquisition of a controlling interest by the Corporation’s existing or future stockholders.

BY ORDER OF THE BOARD OF DIRECTORS

/s/ Fred Thiel
Fred Thiel
Chairman of the Board of Directors

	Marathon Digital Holdings, Inc.
	Name of constituent entity

	Nevada		Corporation
	Jurisdiction		Entity type *

	and,
	Marathon Digital Holdings, Inc.
	Name of resulting entity

	Delaware		Corporation
	Jurisdiction		Entity type *

☐	The entire plan of conversion is attached to these articles.

☒	The complete executed plan of conversion is on file at the registered office or principal place of business of the resulting entity.

☐	The complete executed plan of conversion for the resulting domestic limited partnership is on file at the records office required by NRS 88.330.

Marathon Digital Holdings, Inc.
*Name of constituent* entity**

X
Signature	Title	Date

	1.	The date on which and jurisdiction where the Nevada Corp. was first formed is February 3, 2010, in the State of Nevada.

	2.	The name and type of entity of the Nevada Corp. immediately prior to filing this Certificate of Conversion is Marathon Digital Holdings, Inc., a Nevada corporation.

	3.	The name of the Corporation as set forth in its Certificate of Incorporation filed simultaneously herewith is Marathon Digital Holdings, Inc.

	4.	This Certificate of Conversion shall be effective as of the date of filing of this Certificate of Conversion with Certificate of Incorporation.

		Page
ARTICLE I - CORPORATE OFFICES		E-5

1.1	REGISTERED OFFICE	E-5
1.2	OTHER OFFICES	E-5

ARTICLE II - MEETINGS OF STOCKHOLDERS		E-5

2.1	PLACE OF MEETINGS	E-5
2.2	ANNUAL MEETING	E-5
2.3	SPECIAL MEETING	E-5
2.4	ADVANCE NOTICE PROCEDURES	E-6
2.5	NOTICE OF STOCKHOLDERS’ MEETINGS	E-10
2.6	QUORUM	E-10
2.7	ADJOURNED MEETING; NOTICE	E-10
2.8	CONDUCT OF BUSINESS	E-11
2.9	VOTING	E-11
2.10	STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING	E-11
2.11	RECORD DATES	E-11
2.12	PROXIES	E-12
2.13	LIST OF STOCKHOLDERS ENTITLED TO VOTE	E-12
2.14	INSPECTORS OF ELECTION	E-13

ARTICLE III - DIRECTORS		E-13

3.1	POWERS	E-13
3.2	NUMBER OF DIRECTORS	E-13
3.3	ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS	E-13
3.4	RESIGNATION AND VACANCIES	E-14
3.5	PLACE OF MEETINGS; MEETINGS BY TELEPHONE	E-14
3.6	REGULAR MEETINGS	E-14
3.7	SPECIAL MEETINGS; NOTICE	E-14
3.8	QUORUM; VOTING	E-15
3.9	BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING	E-15
3.10	FEES AND COMPENSATION OF DIRECTORS	E-15
3.11	REMOVAL OF DIRECTORS	E-16

ARTICLE IV - COMMITTEES		E-16

4.1	COMMITTEES OF DIRECTORS	E-16
4.2	COMMITTEE MINUTES	E-16
4.3	MEETINGS AND ACTION OF COMMITTEES	E-16
4.4	SUBCOMMITTEES	E-17

ARTICLE V - OFFICERS		E-17

5.1	OFFICERS	E-17
5.2	APPOINTMENT OF OFFICERS	E-17
5.3	SUBORDINATE OFFICERS	E-17

		Page
5.4	REMOVAL AND RESIGNATION OF OFFICERS	E-18
5.5	VACANCIES IN OFFICES	E-18
5.6	REPRESENTATION OF SECURITIES OF OTHER ENTITIES	E-18
5.7	AUTHORITY AND DUTIES OF OFFICERS	E-18

ARTICLE VI - STOCK		E-18

6.1	STOCK CERTIFICATES; PARTLY PAID SHARES	E-18
6.2	SPECIAL DESIGNATION ON CERTIFICATES	E-19
6.3	LOST CERTIFICATES	E-19
6.4	DIVIDENDS	E-19
6.5	TRANSFER OF STOCK	E-20
6.6	STOCK TRANSFER AGREEMENTS	E-20
6.7	REGISTERED STOCKHOLDERS	E-20

ARTICLE VII - MANNER OF GIVING NOTICE AND WAIVER		E-20

7.1	NOTICE OF STOCKHOLDERS’ MEETINGS	E-20
7.2	NOTICE BY ELECTRONIC TRANSMISSION	E-21
7.3	NOTICE TO STOCKHOLDERS SHARING AN ADDRESS	E-21
7.4	NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL	E-22
7.5	WAIVER OF NOTICE	E-22

ARTICLE VIII - INDEMNIFICATION		E-22

8.1	INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS	E-22
8.2	INDEMNIFICATION OF DIRECTORS AND OFFICERS IN ACTIONS BY OR I N THE RIGHT OF THE CORPORATION	E-23
8.3	SUCCESSFUL DEFENSE	E-23
8.4	INDEMNIFICATION OF OTHERS	E-23
8.5	ADVANCE PAYMENT OF EXPENSES	E-23
8.6	LIMITATION ON INDEMNIFICATION	E-24
8.7	DETERMINATION; CLAIM	E-24
8.8	NON-EXCLUSIVITY OF RIGHTS	E-25
8.9	INSURANCE	E-25
8.10	SURVIVAL	E-25
8.11	EFFECT OF REPEAL OR MODIFICATION	E-25
8.12	CERTAIN DEFINITIONS	E-25

ARTICLE IX - GENERAL MATTERS		E-26

9.1	EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS	E-26
9.2	FISCAL YEAR	E-26
9.3	SEAL	E-26
9.4	CONSTRUCTION; DEFINITIONS	E-26

	Page
ARTICLE X – AMENDMENTS	E-26
ARTICLE XI - EXCLUSIVE FORUM	E-27