Attached files
| file | filename |
|---|---|
| 8-K - MusclePharm Corp | toneit_8k.htm |
| EX-10.3 - MusclePharm Corp | toneit_ex10-3.htm |
| EX-10.2 - MusclePharm Corp | toneit_ex10-2.htm |
| EX-3.3 - MusclePharm Corp | toneit_ex3-3.htm |
EXHIBIT
3.4
|
Filed
in the office of
Ross
Miller
Secretary
of State
State
of Nevada
|
Document
Number
20100100655-60
|
|
Filing
Date and Time
02/17/2010
2:01 PM
|
|
|
Entry
Number
E0580752006-0
|
|
Certificate
of Designation
(Pursuant
to NRS 78.1955)
|
Certificate of Designation
For
Nevada Profit
Corporations
(Pursuant
to NRS 78.1955)
1. Name
of corporation:
Tone in
Twenty
2. By
resolution of the board of directors pursuant to a provision in the articles of
incorporation this certificate establishes the following regarding the voting
powers, designations, preferences, limitations, restrictions and relative rights
of the following class or series of stock.
The
shares of the series of preferred stock created and authorized by this
Resolution shall be designated “Series A Convertible Preferred Stock” (the
“Series A Preferred
Stock”). The total number of authorized shares constituting the Series A
Preferred Stock shall be 833,333. The number of shares constituting this series
of preferred stock of the Corporation may be increased or decreased at any time,
from time to time, in accordance with applicable law up to the maximum number of
shares of preferred stock of the Corporation; provided, however, that no
decrease shall reduce the number of shares of this series to a number less than
that of the then-outstanding shares of Series A Preferred Stock. The stated par
value of the Series A Preferred Stock shall be $0.001 per share. Shares of the
Series A Preferred Stock shall be dated the date of issue. (Continued
on attachment)
3. Effective
date of filing: (optional)
(must not
be later than 90 days after the certificate is filed)
4: Signature:
(required)
/s/ John Dean Harper,
Secretary
Signature
of Officer
Filing
Fee: $175.00
IMPORTANT: Failure
to include any of the above information and submit with the proper fees may
cause this filing to be rejected.
CERTIFICATE
OF DESIGNATION
OF
SERIES
A CONVERTIBLE PREFERRED STOCK
OF
TONE
IN TWENTY
________________________________________
Pursuant
to Section 78.1955 of the
Nevada
Revised Statutes
________________________________________
The undersigned does hereby certify
that pursuant to the authority conferred upon the Board of Directors of TONE IN
TWENTY, a Nevada corporation (the “Corporation”), by its
Articles of Incorporation, as amended, and Section 78.315 of the Nevada Revised
Statutes, the Board of Directors, by unanimous written consent, duly approved
and adopted the following resolution (referred to herein as the “Resolution”):
RESOLVED, that pursuant to the
authority conferred on the Board of Directors of the Corporation (“Board of Directors”)
by the Articles of Incorporation of the Corporation (the “Articles”), and in
recognition of the fact that the Certificate of Amendment filed on February 23,
2007 designated the Series A Convertible Preferred Stock, the Board of Directors
hereby confirms and further defines and, authorizes the issuance of a series of
preferred stock, par value $0.001 per share, of the Corporation, consisting of
up to 833,333 shares (after adjusting for the 1 for 6 reverse split which was
effected on June 25, 2009, and hereby fixes the voting powers, designations,
preferences, and relative, optional and other special rights, and
qualifications, limitations, and restrictions thereof, of the shares of such
series, in addition to those set forth in the Articles, as follows:
SECTION 1. DESIGNATION OF SERIES A
CONVERTIBLE PREFERRED STOCK. The shares of the series of preferred stock
created and authorized by this Resolution shall be designated “Series A
Convertible Preferred Stock” (the “Series A Preferred
Stock”). The total number of authorized shares constituting the Series A
Preferred Stock shall be 833,333. The number of shares constituting this series
of preferred stock of the Corporation may be increased or decreased at any time,
from time to time, in accordance with applicable law up to the maximum number of
shares of preferred stock authorized under the Articles, less all shares at the
time authorized of any other series of preferred stock of the Corporation;
provided, however, that no decrease shall reduce the number of shares of this
series to a number less than that of the then-outstanding shares of Series A
Preferred Stock. The stated par value of the Series A Preferred Stock shall be
$0.001 per share. Shares of the Series A Preferred Stock shall be dated the date
of issue.
SECTION 2. DIVIDEND
RIGHTS. The holders of shares of Series A Preferred
Stock shall not be entitled to receive any dividends
SECTION 3. LIQUIDATION
RIGHTS. The holders of shares of Series A Preferred
Stock shall not have any liquidation rights.
2
SECTION 4. VOTING RIGHTS. The
holders of Series A Preferred Stock shall not be entitled to (a) any voting
rights with respect to the Series A Preferred Stock or (b) notice of any meeting
of the shareholders of the Corporation, except in each case to the extent
specifically required by Nevada law.
SECTION 5. CONVERSION
RIGHTS.
5.1 Conversion of Series A Preferred
Stock Into Common Stock. At any time and from time to time after the
issuance of the Series A Preferred Stock, any holder thereof may convert any or
all of the shares of Series A Preferred Stock held by such holder at the ratio
of two hundred (200) shares of Common Stock for every one (1) share of Series A
Preferred Stock converted (the “Conversion Rate”),
provided, however, the Company shall not effect any conversion of the Series A
Preferred Stock or any other preferred stock or warrant held by a holder of
Series A Preferred Stock (a “Holder”), and no such
Holder shall have the right to convert any Series A Preferred Stock or any other
preferred stock or warrant held by such Holder, to the extent that after giving
effect to such conversion, the beneficial owner of such shares (together with
such beneficial owner’s affiliates) would beneficially own in excess of 4.9% of
the shares of the Common Stock outstanding immediately after giving effect to
such conversion or exercise. For purposes of the foregoing sentence, the
aggregate number of shares of Common Stock beneficially owned by a beneficial
owner of Series A Preferred Stock held by such beneficial owner and its
affiliates shall include the number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock, any other preferred stock and
warrant held by such Holder with respect to which the determination of such
sentence is being made, but shall exclude shares of Common Stock which would be
issuable upon (i) conversion of the remaining, nonconverted Series A Preferred
Stock beneficially owned by such beneficial owner and its affiliates and (ii)
exercise or conversion of the unexercised or unconverted portion of any other
securities of the Company beneficially owned by such beneficial owner and its
affiliates (including, without limitation, any convertible notes or convertible
preferred stock or warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein. Except as set forth in the
preceding sentence, for purposes of this paragraph, beneficial ownership shall
be calculated in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended. For purposes of this Section 5.1, in determining the number of
outstanding shares of Common Stock a Holder may rely on the number of
outstanding shares of Common Stock as reflected in (1) the Company’s most recent
Form 10-Q, Form 10-K or other public filing with the Securities and Exchange
Commission, as the case may be, (2) a more recent public announcement by the
Company or (3) any other notice by the Company or its transfer agent setting
forth the number of shares of Common Stock outstanding. For any reason at any
time, upon the written or oral request of any Holder, the Company shall within
two business days confirm orally and in writing to any such Holder the number of
shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion
or exercise of securities of the Company, including the Series A Preferred
Stock, any other preferred stock and warrant held by a Holder, by such Holder
and its affiliates since the date as of which such number of outstanding shares
of Common Stock was reported.
3
5.2 Conversion
Procedure.
(a) Notice and Surrender of
Certificates. Any holder of shares of Series A Preferred Stock desiring
to convert any portion thereof into shares of Common Stock shall give written
notice that such holder elects to convert a stated number of Series A Preferred
Stock into Common Stock (the “Conversion Notice”)
and shall surrender each certificate representing the Series A Preferred Stock
to be converted, duly executed in favor of the Corporation or in blank
accompanied by proper instruments of transfer, at the principal business office
of the Corporation (or at such other place as may be designated by Corporation).
The Conversion Notice shall set forth the name or names (with the address or
addresses) in which the certificate or certificates for shares of the Common
Stock shall be issued.
(b) Effective Time of Conversion.
To the extent permitted by law, the conversion of the Series A Preferred Stock
pursuant to this Section 5.2 into Common Stock shall be deemed to have been
effected immediately prior to the close of business on the date on which all the
conditions in Section 5.2(a) of this Resolution have been satisfied, and at such
time the rights of the holder of such shares of Series A Preferred Stock so
converted shall cease, and the person or persons in whose name any certificate
or certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
share of Common Stock represented thereby. The date on which the conversion of
the Series A Preferred Stock pursuant to this Section 5.2 into Common Stock
shall be deemed to have been effected is hereinafter referred to as the “Effective Conversion
Date”. Except as otherwise provided herein, no payment or
adjustment shall be made in respect of the Common Stock delivered upon
conversion of the Series A Preferred Stock.
(c) Issuance of Common Stock
Certificates. As soon as practicable after the Effective Conversion Date,
the Corporation shall issue and deliver, or cause to be issued and delivered, to
the converting holder a certificate or certificates for the number of whole
shares of Common Stock issuable by reason of the conversion of such shares of
Series A Preferred Stock, registered in such name or names and such
denominations as the converting holder has specified, subject to compliance with
applicable laws to the extent such designation shall involve a transfer. In case
the number of shares of Series A Preferred Stock represented by the certificate
or certificates surrendered for conversion pursuant to this Section 5.2 exceeds
the number of shares converted, the Corporation shall, upon such conversion,
execute and deliver to the holder thereof a new certificate for the number of
shares of Series A Preferred Stock represented by the certificate or
certificates surrendered that are not to be converted.
4
5.3 Adjustments
to Conversion Rate.
(a) Subdivision or Combination of Common
Stock. If the Corporation at any time: (i) pays a dividend or makes a
distribution on its Common Stock in shares of Common Stock, (ii) subdivides (by
stock split, recapitalization, or otherwise) its outstanding Common Stock into a
greater number of shares, or (iii) combines (by reverse stock split or
otherwise) its outstanding Common Stock into a smaller number of shares, then
the Conversion Rate in effect at the time of the record date for such dividend
or distribution, or the effective date of such subdivision or combination, shall
be proportionately adjusted immediately thereafter so that the holder of any
shares of the Series A Preferred Stock surrendered for conversion after such
event will receive the kind and amount of shares that such holder would have
received if the Series A Preferred Stock had been converted immediately prior to
the happening of the event. Such adjustment shall be made successively whenever
any of the events referred to in this Section 5.3(a) occur.
5.4 Reservation of Shares of Common
Stock. The Corporation shall at all times reserve and keep available out
of its authorized and unissued shares of Common Stock, such number of shares of
its Common Stock as shall from time to time be sufficient to effect the
conversion of all shares of the Series A Preferred Stock from time to time
outstanding, but shares of Common Stock held in the treasury of the Corporation
may, at the discretion of the Corporation, be delivered upon any conversion of
the Series A Preferred Stock.
RESOLVED FURTHER, that the
President and the Secretary of the Corporation hereby are authorized and
directed to prepare, execute, verify, file and record a certificate of
designation of preferences in accordance with the foregoing resolutions and the
provisions of the Nevada Revised Statutes.
[Remainder
of page intentionally left blank.]
5
IN WITNESS WHEREOF, the
Corporation has caused this Certificate of Designation to be signed by its
President and attested by its Secretary this 16th day of February,
2010.
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TONE
IN TWENTY
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By:
/s/ John
Dean Harper
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John
Dean Harper, President
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Attested
to by:
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By:
/s/ John
Dean Harper
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John
Dean Harper, Secretary
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6