Attached files
file | filename |
---|---|
EX-3.1.2 - SERIES B DESIGNATION - MOBETIZE, CORP. | exhibit312.htm |
EX-3.1.1 - CERT OF AMENDMENT SERIES A - MOBETIZE, CORP. | exhibit311.htm |
8-K - MOBETIZE 8-K SALE SECURITIES - MOBETIZE, CORP. | f8kmobetizepreferred.htm |
Exhibit 3.1.3
CERTIFICATE OF AMENDMENT
OF
PREFERRED STOCK
OF
MOBETIZE CORP.
Series B Preferred Stock
Pursuant to
Sections 78.385and78.390 of Nevada Revised Statutes
The undersigned DOES HEREBY CERTIFY that the following resolution was duly adopted by the Board
of Directors (the Board of Directors) of Mobetize Corp., a Nevada corporation (the Corporation), at a
meeting duly convened and held, at which a quorum was present and acting throughout:
RESOLVED, that pursuant to the authority conferred on the Board of Directors by the Corporations
Articles of Incorporation, the designation of the Corporations Series B Preferred Stock effective May 20,
2016, is hereby amended and replaced in its entirety; and the Chairman and Chief Executive Officer of the
Corporation be, and he hereby is, authorized and directed to execute and file with the Secretary of State of
the State of Nevada a Certificate of Amendment of the Corporation fixing the designations, powers,
preferences and rights of the shares of Series B Preferred Stock, and the qualifications, limitations or
restrictions thereof (in addition to the designations, powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, set forth in the Articles of Incorporation which may be applicable to the
Corporations Series B Preferred Stock, as follows:
1. Number of Shares; Designation. A total of 25,000,000 shares of preferred stock, par value $0.001 per
share, of the Corporation are hereby designated as Series B Preferred Stock (the Series B Preferred Stock).
2. Rank. The Series B Preferred Stock shall, with respect to voluntary or involuntary liquidation,
dissolution or winding-up of the affairs of the Corporation rank:
(i)
Pari passu with the Common Stock, par value $0.001 per share, of the Corporation (the Common
Stock), the Series A Preferred Stock, and any additional series of preferred stock which may in the future
be issued by the Corporation and are designated in an amendment to the Articles of Incorporation or a
certificate of designation establishing such additional preferred stock.
(ii)
Junior to any additional series of preferred stock which may in the future be issued by the
Corporation and are designated in the amendment to the Articles of Incorporation or a certificate of
designation establishing such additional preferred stock as ranking senior to the Preferred Stock.
3. Dividends. Dividends may be declared and paid on the Series B Preferred Stock from funds legally
available therefor as and when determined by the Board of Directors. The Series B Preferred Stock shall,
with respect to the payment of dividends, rank pari passu with the Common Stock and the Series A
Preferred Stock.
If the Corporation declares or pays a dividend or distribution on the Common Stock or the Series A
Preferred Stock, whether such dividend or distribution is payable in cash, securities or other property, the
1
Exhibit 3.1.3
Corporation shall simultaneously declare and pay a dividend on the Series B Preferred Stock on a pari
passu basis with the Common Stock determined on an as-converted basis assuming all outstanding shares
of Series B Preferred Stock had been converted as of immediately prior to the record date of the applicable
dividend (or if no record date is fixed, the date as of which the record holders of Common Stock entitled to
such dividends are to be determined).
4. Conversion.
(a) Right to Convert. The Holder of Series B Preferred Stock (the Holder) shall have the right to convert,
on the second (2nd) annual anniversary date of the designation of the Series B Preferred Stock and from
time to time thereafter, all or any part of the Series B Preferred Stock held by such Holder into such number
of fully paid and non-assessable shares of Common Stock (the Conversion Shares) as is determined in
accordance with the terms hereof (a Conversion); provided, however, in connection with any conversion
hereunder, each Holder of Series B Preferred Stock may not convert any part of the Series B Preferred
Stock if such conversion would cause such Holder or any of its assignees to beneficially own more than
4.99% of the Common Stock of the Corporation. Notwithstanding the initial time restriction on conversion
contained in this paragraph, Holder shall have the right to convert on any date prior to the second (2nd)
annual anniversary of the designation of the Series B Preferred Stock in connection with a transaction of
the type described in paragraph 4(e)(i) below.
(b) Conversion Notice. In order to convert Series B Preferred Stock, the Holder shall send to the Corporation
by facsimile transmission, at any time prior to 3:00 p.m., Pacific Time, on the Business Day (as used herein,
the term Business Day shall mean any day except a Saturday, Sunday or day on which there is a Federal
holiday (the Conversion Date), a notice of conversion in substantially the form attached as Annex I hereto
(a Conversion Notice), stating the number of Series B Preferred Stock to be converted, and a calculation
of the number of shares of Common Stock issuable upon such Conversion in accordance with the formula
set forth in paragraph 4(c) below setting forth the basis for each component thereof. The Holder shall
promptly thereafter send the Conversion Notice and the certificate or certificates being converted to the
Corporation. The Corporation shall issue a new certificate for Series B Preferred Stock to the Holder in the
event that less than all of the Series B Preferred Stock represented by a certificate are converted; provided,
however, that the failure of the Corporation to deliver such new certificate shall not affect the right of the
Holder to submit a further Conversion Notice with respect to such Series B Preferred Stock and, in any
such case, the Holder shall be deemed to have submitted the original of such new certificate at the time that
it submits such further Conversion Notice. Except as otherwise provided herein, upon delivery of a
Conversion Notice by the Holder in accordance with the terms hereof, the Holder shall, as of the applicable
Conversion Date, be deemed for all purposes to be the record owner of the Common Stock to which such
Conversion Notice relates.
(c) Number of Conversion Shares. The number of Conversion Shares to be delivered by the Corporation to
a Holder for each share of Series B Preferred Stock delivered pursuant to a Conversion shall be one (1)
share of Common Stock for each one (1) share of Series B Preferred Stock (the Conversion Rate).
If the Corporation at any time subdivides (by any stock split, stock dividend, recapitalization or otherwise)
the authorized Common Stock into a greater number of shares, the Conversion Rate in effect immediately
prior to such subdivision will not be subject to adjustment. If the Corporation at any time combines (by
combination, reverse stock split or otherwise) the authorized Common Stock into a smaller number of
shares, the Conversion Rate in effect immediately prior to such combination will not be subject to
adjustment.
(d) Delivery of Conversion Shares. The Corporation shall, no later than the close of business on the third
(3rd ) Business Day following the later of the date on which the Corporation receives a Conversion Notice
2
Exhibit 3.1.3
from the Holder pursuant to paragraph 4(b), above, and the date on which the Corporation receives the
related Series B Preferred Stock certificate (such third Business Day, the Delivery Date), issue and deliver
or cause to be delivered to such Holder the number of Conversion Shares determined pursuant to paragraph
4(c) above; provided.
(e) Additional Considerations. The Conversion shall be subject to change from time to time as follows:
(i)
Reorganization, Reclassification, Consolidation, Merger or Sale. Prior to any recapitalization,
reorganization, reclassification, consolidation, merger, or other similar transaction pursuant to which the
holders of the Common Stock are entitled to receive stock, securities or assets with respect to or in exchange
for the Common Stock, the Corporation will make appropriate provision, in form and substance satisfactory
to the Holder of the Series B Preferred Stock, to ensure that the Holder will thereafter have the right to
acquire and receive in lieu of or in addition to, as the case may be, the shares of Common Stock immediately
theretofore acquirable and receivable upon conversion of the Series B Preferred Stock, had such
recapitalization, reorganization, reclassification, consolidation, merger, or other similar transaction not
taken place. In any such case, the Corporation will make appropriate provision, in form and substance
satisfactory to the Holder of a the Series B Preferred Stock to ensure that the provisions of this paragraph
and paragraph 4(e)(ii) below will thereafter be applicable to the Series B Preferred Stock. The Corporation
will not effect any consolidation or merger, unless prior to the consummation thereof, the successor entity
resulting from such consolidation or merger, assumes, by written instrument, in form and substance
satisfactory to the Holder of the Series B Preferred Stock, the obligation to deliver to the Holder of the
Series B Preferred Stock such shares of stock, securities or assets as, in accordance with the foregoing
provisions, that the Holder may be entitled to acquire.
(ii)
Purchase Rights. 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
the Common Stock (the Purchase Rights"), then the Holder of the Series B Preferred Stock will be entitled
to acquire, upon the terms applicable to such purchase rights, the aggregate purchase rights which Holder
could have acquired if the Holder had held the number of shares of Common Stock acquirable upon
complete conversion of Holder's shares of the Series B Preferred Stock 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 the Common Stock are to be determined for the grant, issue or
sale of such purchase rights.
(iii)
Status of Shares. All shares of Series B Preferred Stock that are at any time converted pursuant to
this paragraph 4, and all shares of Series B Preferred Stock that are otherwise reacquired by the Corporation
and subsequently canceled by the Board of Directors, shall be retired and shall not be subject to reissuance.
5. Voting Rights. Each share of the Series B Preferred Stock shall entitle the Holder thereof to one (1) vote
for each Conversion Share into which such share of the Series B Preferred Stock is then convertible and
shall otherwise have voting rights and powers equal to the voting rights and powers of the Common Stock
(except as otherwise expressly provided herein or as required by law), voting together with the Common
Stock as a single class and shall be entitled to notice of any stockholders meeting in accordance with the
Bylaws of the Corporation.
To the extent that under the Nevada Revised Statutes, the vote of the Holders of the Series B Preferred
Stock, voting separately as a class or series, as applicable, is required to authorize a given action of the
Corporation, the affirmative vote or consent of the Holders of at least a majority of the shares of the Series
B Preferred Stock represented at a duly held meeting at which a quorum is present or by written consent of
3
Exhibit 3.1.3
a majority of the shares of Series B Preferred Stock (except as otherwise may be required under the Nevada
Revised Statutes) shall constitute the approval of such action by the class.
6. Restrictions and Limitations.
So long as any shares of Series B Preferred Stock remain outstanding, the Corporation shall not, without
the vote or written consent by the Holders of the outstanding Series B Preferred Stock, voting as a single
class:
(i)
Redeem, purchase or otherwise acquire for value (or pay into or set aside for a sinking or other
analogous fund for such purpose) any share or shares of its capital stock, except for a transaction
in which all outstanding shares of Series B Preferred Stock are concurrently redeemed, purchased
or otherwise acquired, provided however, that this restriction shall not apply to the repurchase of
shares of Common Stock from employees, officers, directors, consultants or other persons
performing services for the Corporation or any subsidiary pursuant to agreements pursuant to which
the Corporation has the option to repurchase such shares upon the occurrence of certain events,
such as the termination of employment.
(ii)
alter, modify or amend (whether by merger or otherwise) the terms of the Series B Preferred Stock
in any way;
(iii)
increase (whether by merger or otherwise) the authorized number of shares of the Series B Preferred
Stock;
(iv)
re-issue (whether by merger or otherwise) any shares of Series B Preferred Stock which have been
converted or redeemed in accordance with the terms hereof;
(v)
enter into any definitive agreement or commitment with respect to any of the foregoing; or
(vi)
cause or permit any subsidiary to engage in or enter into any definitive agreement or commitment
with respect to any of the foregoing.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be duly executed
on its behalf by its undersigned Chairman of the Board of Directors as of May 27, 2016.
By:
/s/ Malek Ladki
Name: Malek Ladki
Title: Chairman of the Board of Directors
4
Exhibit 3.1.3
ANNEX I
CONVERSION NOTICE
The undersigned hereby elects to convert shares of Series B Preferred Stock (the Preferred Stock),
represented by stock certificate No(s). ________ , into shares of common stock (Common Stock) of
Mobetize (the Corporation) according to the terms and conditions of the Amended Certificate of
Designation dated effective May 31, 2016, relating to the Preferred Stock (the Amended Certificate of
Designation), as of the date written below.
Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the
Certificate of Designation.
Conversion Date: ____________________________
Number of Shares of Preferred Stock to be Converted:
Number of Shares of Common Stock to be Issued:
Name of Holder:
Address: ___________________________________
__________________________________________
__________________________________________
Signature:______________________
Holder Requests Delivery to be made: (check one)
o By Delivery of Physical Certificates to the Above Address
Through Depository Trust Corporation: __ (Account No: ________________)
5