Attached files
Exhibit
3.5
CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
OMNI GLOBAL TECHNOLOGIES, INC.
(Pursuant
to NRS 78.1955)
OMNI
GLOBAL TECHNOLOGIES, INC., a corporation organized and existing
under the Nevada Revised Statutes (hereinafter called
the “Corporation”), hereby
certifies that the following resolution was adopted by the Board of
Directors of the Corporation as required by NRS 78.1955 at a
meeting duly called and held on November 15, 2017.
RESOLVED, that
pursuant to the authority granted to and vested in the Board of
Directors of the Corporation (the “Board’) in accordance
with the provisions of the Articles of Incorporation of the
Corporation, as currently in effect, the Board hereby fixes the
relative rights, preferences, and limitations thereof as
follows:
Series
A Convertible Preferred Stock: 500,000 shares
Section 1. Designation
and Amount. The Corporation has authorized 5,000,000
shares of preferred stock, par value $0.001, and of those shares,
500,000 shares are hereby designated as “Series A Convertible
Preferred Stock” (the “Series A Preferred
Stock”). Such number of shares may be increased
by resolution of the Board of Directors.
Section 2. Voting
Rights. Except as otherwise required by law, the holders of
shares of Series A Preferred Stock shall have no voting rights
unless and until such shares are converted into shares of common
stock, par value $.001 per share, of the Corporation (the
“Common Stock”).
Section 3. Conversion.
(a)
Subject to the limitations in Section 8 below, each share of
Series A Preferred Stock shall be convertible into a number of
shares of Common Stock equal to the Conversation Ratio (as defined
below).
(b) The
“Conversion Ratio” shall initially equal one (1) share
of Series A Preferred Stock for twenty (20) shares of Common Stock
and shall be subject to adjustment, from time to time, pursuant to
Section 4 below.
(c) In
order to convert any shares of Series A Preferred Stock, in whole
or in part, into full shares of Common Stock, the applicable Holder
shall give written notice in the form of Exhibit 1 (the
“Conversion Notice”) by facsimile (with the original of
such notice forwarded via overnight courier) to the Corporation at
its principal offices to the effect that such Holder elects to have
converted the number of shares of Series A Preferred Stock
specified therein (such notice and election shall be irrevocable by
the Holder). The effective date of conversion (the “Holder
Conversion Date”) shall be deemed to be the date on which the
Corporation receives by facsimile the Conversion
Notice.
(d)
Upon receipt by the Corporation of such Conversion Notice by
facsimile and courier, and surrender of the Series A Preferred
share certificate, the Corporation shall cause its transfer agent
to issue and deliver within three business (3) days: (i) a
certificate or certificates representing the number of shares of
Common Stock being acquired upon the conversion of shares of Series
A Preferred Stock; and (ii) one or more certificates
representing the number of shares of Series A Preferred Stock not
converted. The person or persons entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder of such shares of Common Stock on the
Holder Conversion Date.
(e)
Each certificate representing shares of Series A Preferred Stock
surrendered to the Corporation for conversion pursuant to this
Section 3 shall, on the Holder Conversion Date and subject to
issuance of the shares of Common Stock issuable upon conversion
thereof, be canceled and retired by the Corporation. Upon issuance
of the shares of Common Stock issuable upon conversion of the
Series A Preferred Stock pursuant to this Section 3, the
shares of Series A Preferred Stock formerly represented thereby
shall be deemed to be canceled and shall be considered to be
authorized but unissued and outstanding for any purpose, including
without limitation, for purposes of accumulating dividends
thereon.
(f) In
the event of a liquidation of the Corporation, the conversion
rights shall terminate at the close of business on the first full
day preceding the date fixed for the payment of any amounts
distributable on liquidation to the holders of Series A Preferred
Stock.
(g)
Notwithstanding the foregoing, in no event may the Holder convert
any shares of Series A Preferred Stock into Common Stock if, as a
result of such conversion, the Holder will own of record and/or
beneficially in excess of 4.99% of the outstanding shares of Common
Stock on the Holder Conversion Date (the “Conversion
Limitation”). Nevertheless, in the event of the Corporation
enters into an agreement or understanding that will result in a
change in control of the Corporation (“Change in Control
Transaction”), the Corporation will give the Holder thirty
(30) days advance written notice of the Change in Control
Transaction and, not less than ten (10) days prior to the closing
of the Change in Control Transaction, it is expressly understood
and agreed by the Corporation and the Holder that the Conversion
Limitation contained in this Section 3(g) shall be waived in its
entirety and that the Holder may convert all but not less than all
of the Holder’s Series A Preferred Stock into shares of
Common Stock at any time prior to the Closing of the Change in
Control Transaction.
Section 4. Adjustments;
Reorganizations.
(a) Adjustment
for Splits and Combinations. (i) In the event the
Corporation at any time or from time to time hereafter makes, or
fixes a record date for the effectuation of a split or subdivision
of the outstanding shares of Common Stock without payment of any
consideration, or to effect a dividend of Common Stock to the
holders of Common Stock, then as of such record date (or the date
of such split or subdivision, dividend or distribution if no record
date is fixed), the Conversion Ratio shall be increased in
proportion to such increase of the aggregate shares of Common Stock
outstanding.
(ii) If
the number of shares of Common Stock outstanding at any time after
the Issuance Date is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date of such
combination (or the date of such combination if no record date is
fixed), the Conversion Ratio shall be appropriately decreased in
proportion to such decrease in of the aggregate shares of Common
Stock outstanding.
(b) Adjustment
for Dividends and Distributions. In the event the
Corporation at any time or from time to time after the Issuance
Date makes, or fixes a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other
distribution payable in securities, cash or other assets of the
Corporation (other than shares of Common Stock) or any of its
subsidiaries, including in connection with a spin-off, then and in
each such event, provision shall be made so that the Holders shall
concurrently receive dividends or distributions equal in amount and
in the same kind of property (whether cash, securities or other
property) as such Holder would be entitled to receive if all of the
outstanding Series A Preferred Stock were converted into Common
Stock as of the record date of such dividend or distribution with
respect to Common Stock. For purposes of this Section 4(b),
the number of shares of Common Stock so receivable upon conversion
by the Holder shall be deemed to be that number which the Holder
would have received upon conversion of the Series A Preferred Stock
if the Holder Conversion Date had been the day preceding the date
upon which the Corporation announced the making of such dividend or
other distribution.
(c) Adjustment
for Reclassification, Exchange and Substitution. In the
event that at any time or from time to time after the Issuance
Date, the Common Stock issuable upon the conversion of the Series A
Preferred Stock is changed into the same or a different number of
shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than a
subdivision or combination of shares or stock dividend or
reorganization provided for elsewhere in this Section 4), then
and in each such event each Holder shall thereafter have the right
upon conversion to receive, the kind and amount of shares of stock
and other securities, cash and property receivable upon such
recapitalization, reclassification or other change, by holders of
the number of shares of Common Stock which the Holder of shares of
Series A Preferred Stock would have received had it converted such
shares immediately prior to such recapitalization, reclassification
or other change, at the Conversion Ratio then in effect (the kind,
amount and price of such stock and other securities to be subject
to adjustments as herein provided). Prior to the consummation of
any recapitalization, reclassification or other change contemplated
hereby, the Corporation will make appropriate provision (in form
and substance satisfactory to the Holders of a majority of the
Series A Preferred Stock then outstanding) to ensure that each of
the Holders of the Series A Preferred Stock 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 otherwise acquirable
and receivable upon the conversion of such Holder’s Series A
Preferred Stock, such shares of stock, securities or assets that
would have been issued or payable in such recapitalization,
reclassification or other change with respect to or in exchange for
the number of shares of Common Stock which would have been
acquirable and receivable upon the
conversion
of such Holder’s Series A Preferred Stock had such
recapitalization, reclassification or other change not taken place
(without taking into account any limitations or restrictions on the
timing or amount of conversions). In the event of such
recapitalization, reclassification or other change, the formulae
set forth herein for conversion and redemption shall be equitably
adjusted to reflect such change in number of shares or, if shares
of a new class of stock are issued, to reflect the market price of
the class or classes of stock issued in connection with the above
described events.
(d) Reorganization.
If at any time or from time to time after the Issuance Date there
is a capital reorganization of the Common Stock (other than a
recapitalization, subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this Section 4)
then, as a part of such reorganization, provisions shall be made so
that the Holders shall thereafter be entitled to receive, subject
to a delay in delivery to Holders pursuant to Section 8 below,
upon conversion of its shares of Series A Preferred Stock the
number of shares of stock or other securities or property to which
a holder of the number of shares of Common Stock deliverable upon
conversion would have been entitled to receive had the holder of
shares of Series A Preferred Stock converted such shares
immediately prior to such capital reorganization, at the Conversion
Ratio then in effect. In any such case, appropriate adjustments
shall be made in the application of the provisions of this
Section 4 with respect to the rights of the Holders after such
capital reorganization to the extent that the provisions of this
Section 4 shall be applicable after that event and be as
equivalent as may be practicable, including, by way of illustration
and not limitation, by equitably adjusting the formulae set forth
herein for conversion and redemption to reflect the market price of
the securities or property issued in connection with the above
described events.
(e) Certain
Events. If any event occurs of the type contemplated by the
foregoing provisions of this Section 4 but not expressly
provided for by such provisions, then the Corporation’s Board
of Directors will make an appropriate adjustment in the Conversion
Ratio so as to protect the rights of the holders of the Series A
Preferred Stock; provided, however, that no such
adjustment will decrease the Conversion Ratio as otherwise
determined pursuant to this Section 4.
Section 5. Dividends.
(a)
Except as otherwise provided in Section 5(b) below, the shares
of Series A Preferred Stock shall not be entitled to any dividends
in respect thereof unless and until the Board, in its discretion,
so elects.
(b) The
Corporation shall not declare or make any dividend or distribution
with respect to Common Stock, unless each holder of Series A
Preferred Stock concurrently receives dividends or distributions
equal in amount and in the same kind of property (whether cash,
securities or other property) as such holder would be entitled to
receive if all of the outstanding Series A Preferred Stock were
converted into Common Stock as of the record date of such dividend
or distribution with respect to Common Stock.
Section 6. Rank;
Liquidation. The Series A
Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, equal to the holders of
Common Stock. The Holders of Series A Preferred Stock, in the event
of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, shall be entitled to receive in cash out of
the assets of the Corporation, whether from capital or from
earnings available for distribution to its stockholders
pari passu
with any amount paid to the holders
of any Common Stock on a pro rata share of the assets of the
Corporation legally available for distribution determined on an
as-converted to Common Stock basis based on the Conversion Ratio at
the time in effect for the Series A Preferred Stock and number of
other shares of Common Stock then outstanding.
Section 7. Fractional
Shares. No fractional shares of Common Stock or scrip
representing fractional shares of Common Stock shall be issuable
hereunder and the Corporation shall pay cash in an amount equal to
the value of the fractional share of Common Stock to which any
holder would otherwise be entitled.
Section 8. Reservation
of Stock. The Corporation shall reserve and keep
available unissued shares of Common Stock as shall be necessary for
the purpose of effecting the conversion of shares of issued and
outstanding Series A Preferred Stock and for the payment of any
dividends in shares of registered Common Stock, which shares shall
be free of preemptive rights, for the purpose of enabling the
Corporation to satisfy any obligation to issue shares of its Common
Stock, or other securities, upon conversion of all shares of Series
A Preferred Stock pursuant hereto. Calculation of reservation shall
occur on a periodic basis and any periodic inadequate reserve of
authorized Common Stock shall not limit or affect the “as
converted” voting rights of the Series A Preferred
Shares.
Section 9. Taxes. The
Corporation shall pay any and all documentary, stamp or similar
taxes attributable to the issuance and delivery of Common Stock or
other securities upon conversion of the Series A Preferred Stock.
However, the Corporation shall not be required to pay any tax which
may be payable in respect to any transfer involved in the issue and
delivery of shares of Common Stock upon conversion in a name other
than that in which the shares of the Series A Preferred Stock so
converted were registered, and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery
has paid to the Corporation the amount of any such tax, or has
established, to the satisfaction of the Corporation, that such tax
has been paid. The Corporation shall not be required to pay any
income tax upon the issuance of Common Stock in lieu of cash
payment of dividends or redemption payments.
Section 10. No
Impairment. Unless specifically approved by the Board
of Directors of the Corporation, the Corporation shall not
intentionally take any action which would impair the rights and
privileges of the Series A Preferred Stock set forth herein or the
rights of the Holders thereof. The Corporation will not, by
amendment of its Articles of Incorporation or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in the
carrying out of all the provisions herein and in the taking of all
such action as may be necessary or appropriate in order to protect
the Conversion Rights of the holders of the Series A Preferred
Stock against impairment.
Section 11. Replacement
Certificate. In the event that any Holder notifies the
Corporation that a stock certificate evidencing shares of Series A
Preferred Stock has been lost, stolen, destroyed or mutilated, the
Corporation shall issue a replacement stock certificate evidencing
the Series A Preferred Stock identical in tenor and date (or if
such certificate is being issued for shares not covered in a
redemption or conversion, in the applicable tenor and date) to the
original stock certificate evidencing the Series A Preferred
Stock, provided that the Holder
executes and delivers to the Corporation an affidavit of lost stock
certificate and an agreement reasonably satisfactory to the
Corporation to indemnify the Corporation from any loss incurred by
it in connection with such Series A Preferred Stock
certificate; provided, however, the Corporation shall
not be obligated to re-issue replacement stock certificates if the
Holder contemporaneously requests the Corporation to convert or
redeem the full number of shares evidenced by such lost, stolen,
destroyed or mutilated certificate.
Section 12. Amendment. Unless
specifically approved by the Board of Directors of the Corporation,
the Articles of Incorporation of the Corporation shall not be
amended, including any amendment through consolidation, merger,
combination or other transaction, in any manner which would
materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least a
majority of the outstanding shares of Series A Preferred Stock,
voting together as a single class.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by an officer thereunto duly
authorized this 15th day of November 2017.
OMNI
GLOBAL TECHNOLOGIES, INC.
By:
Patrick
Moynihan
Name:
Patrick
Moynihan
Title:
Chief Executive
Officer and
Chairman
EXHIBIT 1
CONVERSION NOTICE
Reference
is made to the Certificate of Designation of the Series A Preferred
Stock (the “Certificate of Designation”) of BLOCKCHIAN
INDUSTRIES, INC., a Nevada corporation (the
“Corporation”). In accordance with and pursuant to the
Certificate of Designation, the undersigned hereby elects to have
the Corporation convert the number of shares of Series A
Convertible Preferred Stock, par value $0.001 per share (the
“Series A Preferred Stock”), of the Corporation,
indicated below into shares of Common Stock, par value $0.001 per
share (the “Common Stock”), of the Corporation, by
tendering the stock certificate(s) representing the share(s) of
Series A Preferred Stock specified below as of the date specified
below.
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Date of
Conversion:
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Number
of Series A
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Preferred
Stock to be converted:
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Stock certificate no(s). of Series A Preferred Stock to be converted:
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Please
confirm the following information:
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Conversion
Ratio:
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Shares
of Common Stock:
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Please
issue the Common Stock into which the Series A Preferred Stock are
being converted and, if applicable, any check drawn on an account
of the Corporation in the following name and to the following
address:
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Issue
to:
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Facsimile
Number:
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Authorization:
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By:
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Title:
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