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| EX-3.1 - CERTIFICATE OF DESIGNATION OF THE SERIES B CONVERTIBLE PREFERRED STOCK, DATED NO - PREMIER BIOMEDICAL INC | biei_ex31.htm |
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 Exchange Act of
1934
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Date of
Report (Date of earliest event reported):
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November 23, 2018
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PREMIER BIOMEDICAL, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
(State
or other
jurisdiction
of incorporation)
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000-54563
(Commission
File
Number)
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27-2635666
(I.R.S.
Employer
Identification
No.)
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P.O. Box 25
Jackson Center, PA 16133
(Address
of principal executive offices) (zip code)
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(814) 786-8849
(Registrant’s
telephone number, including area code)
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(Former
name or former address, if changed since last report.)
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Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
[_]
Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[_]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[_]
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[_]
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of
1934 (§240.12b-2 of this chapter).
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.
[_]
Section 1 – Registrant’s Business and
Operations
Item 1.01
Entry into a Material Definitive Agreement.
Securities Purchase Agreement
On November 23, 2018, Premier Biomedical, Inc.
(the “Company” also referred to herein as
“us,” “we” and “our”), entered into a Securities Purchase
Agreement (the “Agreement”) between the Company and each of
RedDiamond Partners LLC and SEG-RedaShex, LLC (the
“Purchasers”) whereby we issued an aggregate of 150,000
shares of our Series B Convertible Preferred Stock (the
“Series B Preferred
Stock”), a newly created
class of preferred stock described below, for $150,000 (the
“Sale”).
In
the Agreement, we agreed to reserve no less than 225 million shares
of our common stock for conversion of the Series B Preferred Stock.
The Purchasers have the right to participate in any future
financing up to 100% of the financing for the next 12 months. We
also agreed to refrain from issuing any shares of common stock or
equivalents for 30 days after the Sale. The Agreement also
prohibits the Company from entering into any agreement involving a
Variable Rate Transaction for 8 months after the Sale. This is a
transaction where we sell convertible debt or equity securities
that are convertible into shares of common stock based on a
conversion price that is based on the trading price of our common
stock or at some price to be determined after the initial
transaction.
In
addition, the Agreement contains a most-favored nation provision
whereby the Purchasers may exchange their shares of Series B
Preferred Stock for securities issued in a Subsequent Financing on
the same terms and conditions. The Purchasers also have
anti-dilution rights that allow them to acquire shares of common
stock at a lower conversion price if a person acquires shares of
our common stock or equivalents at a price per share lower than the
conversion price of the Series B Preferred Stock.
The
Agreement also contains customary representations and warranties
made by the Company and by the Purchasers. The Agreement also
contains other certain terms and conditions which are common in
such agreements, and reference is made herein to the text of the
Agreement which will be filed in our next Annual Report on Form
10-K.
Section 3 – Securities and Trading Markets
Item
3.02 Unregistered Sale of Equity
Securities.
The disclosure in
Item 1.01 above regarding the issuance of securities in the Sale is
incorporated herein by reference.
The
shares of preferred stock issued pursuant to the Agreement and in
the transactions listed above were offered and sold in reliance on
an exemption from registration pursuant to Section 4(a)(2) of the
Securities Act of 1933, as amended, and Rule 506 of Regulation D.
The investors have represented that each is an accredited investor,
as defined in Regulation D, and has acquired the securities for
investment purposes only and not with a view to, or for sale in
connection with, any distribution thereof. The securities were not
issued through any general solicitation or
advertisement.
Section 5 – Corporate Governance and Management
Item 5.03 Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year
In connection with the Sale, our Board of
Directors designated a new class of preferred stock, the Series B
Convertible Preferred Stock, and on November 26, 2018, we filed a
Certificate of Designation of the Rights, Preferences, Privileges
and Restrictions of the Series B Convertible Preferred Stock (the
“Certificate of
Designation”) with the
Secretary of State of the State of Nevada. The Certificate of
Designation provides for the issuance of up to 1,000,000 shares of
Series B Preferred Stock, par value $0.001 per
shares.
The
Certificate of Designation provides, among other things, that
holders of Series B Preferred Stock shall receive noncumulative
dividends on an as-converted basis in the same form as any
dividends to be paid out on shares of our common stock. Any
dividends paid will first be paid to the holders of Series B
Preferred Stok prior and in preference to any payment or
distribution to holders of common stock. Other than as set forth in
the previous sentence, the Certificate of Designation provides that
no other dividends shall be paid on Series B Preferred Stock.
Dividends on the Series B Preferred Stock are not mandatory or
cumulative. There are no sinking fund provisions applicable to the
Series B Preferred Stock, and the holders of Series B Preferred
Stock have no redemption rights. The Corporation may redeem the
Series B Preferred Stock upon 30 days’ prior notice at a
price equal to the sum of 133% of the Original Issue Price plus the
amount of any unpaid dividends on the shares to be redeemed. The
Original Issue Price is set at $1.00 per share for the Series B
Preferred Stock.
In
the event of any liquidation, dissolution or winding up of the
Company, the Series B Preferred Stock will be paid prior and in
preference to any payment or distribution on any shares of common
stock, or subsequent series of preferred stock, an amount per share
equal to the Original Issue Price of the Series B Preferred Stock
and the amount of any accrued or declared but unpaid dividends. The
holders of the Series B Preferred Stock will then receive
distributions along with the holders of the common stock on a pari
passu basis according to the number of shares of common stock the
Series B Preferred holders would be entitled if they converted
their shares of Series B Convertible Preferred Stock at the time of
such distribution.
Each
share of Series B Preferred Stock is convertible at any time at the
holder's option into that number of fully paid and nonassessable
shares of our common stock equal to the quotient of the Conversion
Principal Amount divided by the lesser of (a) the Fixed Conversion
Price established by our Board of Directors on the date of
conversion, and (b) the Fair Market Value. The Certificate of
Designation defines Fair Market Value as 60% of the lowest Traded
Price for the common stock for the previous fifteen (15) trading
days prior to the Conversion Date on the market or exchange where
our common stock is trading. The Conversion Principal Amount is
equal to the Original Issue Price ($1.00) divided by nine-tenths
(0.9). The Fixed Conversion Price is the price set by our Board of
Directors upon conversion but in no event less than the last Traded
Price of our common stock. Traded Price is defined as the price at
which our common stock changes hands on the designated exchange or
market.
Conversion
of the Series B Preferred Stock is subject to a Beneficial
Ownership Limitation that prohibits the conversion of the Series B
Preferred Stock if the conversion would result in beneficial
ownership by the holder and its affiliates of more than 4.99% of
our outstanding shares of common stock. A holder of Series B
Preferred Stock may increase its Beneficial Ownership Limitation up
to 9.99% but only after 61 days have passed since the holder gave
notice to the Company.
We
are required to reserve authorized but unissued common stock for
the full number of shares deliverable upon the conversion of all
outstanding shares of all series of preferred stock.
The
Series B Preferred Stock has no voting rights. The rights of the
Series B Preferred Stock survive any reorganization, merger or sale
of the Company.
As
long as any shares of Series B Preferred Stock remain outstanding,
the Certificate of Designation provides that without the approval
of 75% of the holders of the outstanding Series B Preferred Stock,
we may not (i) alter or change the rights, preferences, or
privileges of the Series B Convertible Preferred Stock, (ii)
increase or decrease the number of authorized shares of Series B
Convertible Preferred Stock, or (iii) authorize the issuance of
securities having a preference over or on par with the Series B
Preferred Stock.
This
foregoing description of the Certificate of Designation does not
purport to be complete and is qualified in its entirety by
reference to the complete text of such certificate, a copy of which
is filed herewith as Exhibit 3.1.
Section 9 – Financial Statements and Exhibits
Item
9.01 Financial Statements and
Exhibits.
(d)
Exhibits
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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.
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Premier
Biomedical, Inc.
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Dated: November 29,
2018
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/s/ William
Hartman
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By: William
Hartman
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Its: Chief
Executive Officer
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