Attached files
Exhibit 3.3
Exhibit
A
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATIONS OF PREFERENCES AND RIGHTS OF
SERIES
A PREFERRED STOCK
of
Sollensys
Corp.
Pursuant
to Section 78.1955 of the Nevada Revised Statutes
The
undersigned, Donald Beavers, hereby certifies that:
1.
He is the duly
elected Chief Executive Officer of Sollensys Corp., a Nevada
corporation (“Corporation”).
2.
A resolution was
adopted and approved by the Board of Directors of the Corporation
by unanimous written consent on October 6, 2020 authorizing and
approving the Amended and Restated Certificate of Designation of
Preferences and Rights of Series A Preferred Stock of the
Corporation set forth below.
3.
The approval of
stockholders as required by Subsection 3 of Section 78.1955 of the
Nevada Revised Statutes has been obtained.
IN
WITNESS WHEREOF, the undersigned does hereby execute this
Certificate, and does hereby acknowledge that this instrument
constitutes his act and deed and that the facts stated herein are
true.
Sollensys
Corp.
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AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATIONS OF PREFERENCES AND RIGHTS OF
SERIES
A PREFERRED STOCK
of
Sollensys
Corp.
a
Nevada corporation
The
undersigned Chief Executive Officer of Sollensys Corp., a Nevada
corporation (“Corporation”), a corporation organized
and existing under the laws of the State of Nevada, does hereby
certify that, pursuant to the authority contained in the
Corporation’s Articles of Incorporation
(“Articles”) and pursuant to Section 78.1955 of the
Nevada Revised Statutes (“NRS”), and in accordance with
the provisions of the resolution amending the Certificate of
Designations or Preferences and Rights of Series A Preferred Stock
as follows:
FIRST:
The Articles, as amended, authorize the issuance by the Corporation
of shares of common stock, par value of $0.001 per share
(“Common Stock”) and 25,000,000 shares of preferred
stock, par value of $0.001 per share (“Preferred
Stock”), and further, authorize the Board of Directors
(“Board”) of the Corporation, by resolution or
resolutions, at any time and from time to time, to divide and
establish any or all of the unissued shares of Preferred Stock not
then allocated to any series into one or more series and, without
limiting the generality of the foregoing, to fix and determine the
designation of each such share, the number of shares which shall
constitute such series and certain preferences, limitations and
relative rights of the shares of each series so
established.
SECOND:
The Board has designated 25,000,000 shares of the Preferred Stock
as Series A Preferred Stock, par value $0.001 per share
(“Series A Preferred Stock”), pursuant to Certificate
of Designation as filed with the Secretary of State of the State of
Nevada on March 23, 2020 as amended by the Certificate of
Correction filed with the Secretary of State of the State of Nevada
on April 15, 2020 (as so amended, the “Certificate of
Designation”);
THIRD,
by unanimous written consent of the Board dated October 6, 2020,
and with the approval of the sole holder of all of the Series A
Preferred Stock (the “Series A Holder”) via unanimous
written consent dated October 6, 2020, the Board and the Series A
Holder determined to amend and restate the Certificate of
Designations in its entirety as follows:
SERIES
A PREFERRED STOCK
Section
1. Powers and Rights of Series A
Preferred Stock. There is hereby designated a class of
Preferred Stock of the Corporation as the Series A Preferred Stock,
par value $0.001 per share of the Corporation (the “Series A
Preferred Stock”). The number of shares, powers, terms,
conditions, designations, preferences and privileges, relative,
participating, optional and other special rights, and
qualifications, limitations and restrictions, if any, of the Series
A Preferred Stock shall be as set forth in this Certificate of
Designations of Preferences and Rights of Series A Preferred Stock
(this “Certificate of Designations”). For purposes
herein, a holder of shares of Series A Preferred Stock shall be
referred to as a “Series A Holder.”
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(a) Number. The number of authorized shares of the Series A
Preferred Stock is twenty five million (25,000,000)
shares.
(b) Conversion.
Each share of Series A Preferred Stock shall be convertible into,
or deemed convertible into as set forth herein, shares of
common stock, par value $0.001 per share, of the Corporation (the
“Common Stock”) as set
forth herein and subject to the conditions as set forth herein
(such shares of Common Stock being issued upon conversion, the
“Conversion Shares”).
(i)
Timing of
Conversion. Each share of
Series A Preferred Stock shall be convertible into Conversion
Shares at the election of the applicable Series A Holder at any
time.
(ii)
Conversion
Shares. Each share of Series A
Preferred Stock shall be initially be convertible into six hundred
(600) Conversion Shares, subject to adjustment as set forth herein
(the “Conversion Ratio”). The Conversion Ratio shall be
subject to adjustment as set forth in Section 1(g).
(iii)
Conversion
Election. A Series A
Holder shall effect conversions pursuant to this Section 1(b) by providing the Corporation with
the form of conversion notice attached hereto as Annex A (a
“Series A Notice of Conversion”). Each Series A Notice
of Conversion shall specify the number of shares of Series A Preferred Stock to be converted,
the number of shares of Series
A Preferred Stock owned prior to the conversion at issue, the
number of shares of Series A Preferred Stock owned subsequent to
the conversion at issue, the number of shares of Common Stock to be
received, and the date on which such conversion is to be effected,
which date may not be prior to the date the applicable Series A
Holder delivers such Series A Notice of Conversion to the
Corporation (such date, the “Series A Conversion
Date”). If no Series A Conversion Date is specified in a
Series A Notice of Conversion, the Series A Conversion Date shall
be the date that such Series A Notice of Conversion to the
Corporation is deemed delivered hereunder. No ink-original Series A
Notice of Conversion shall be required, nor shall any medallion
guarantee (or other type of guarantee or notarization) of any
Series A Notice of Conversion form be required. The calculations and entries set
forth in the Series A Notice of Conversion shall control in the
absence of manifest or mathematical error. To effect conversions of
shares of Series A Preferred Stock, a Series A Holder shall not be
required to surrender the certificate(s) representing the shares of
Series A Preferred Stock to the Corporation unless all of the
shares of Series A Preferred Stock represented thereby are so
converted, in which case such Holder shall deliver the certificate
representing such shares of Series A Preferred Stock promptly
following the Series A Conversion Date at issue. The Corporation
shall, as soon as practicable thereafter, issue and deliver at such
office to such Series A Holder a certificate or certificates for
the number of Conversion Shares to which such Series A Holder shall
be entitled as aforesaid. Such conversion shall be deemed to have
been made on the Series A Conversion Date, and the person or
persons entitled to receive the Conversion Shares shall be treated
for all purposed as the record holder or holders of such shares of
Common Stock as of such date. All shares of Series A Preferred
Stock which shall have been surrendered for conversion as herein
provided shall no longer be deemed to be outstanding and all rights
with respect to such shares, including the rights, if any, to
receive dividends and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the
holders thereof to receive Conversion Shares in exchange
therefor.
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(iv)
Fractional Shares. No
fractional shares or scrip representing fractional shares shall be
issued upon the conversion of the Series A Preferred Stock. As to
any fraction of a share which the Series A Holder would
otherwise be entitled to
purchase upon such conversion, the Corporation shall at its
election, either pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the fair
market value of a share of Common Stock as determined in good faith
by the Board, or round up to the next whole share of Common
Stock.
(v)
Transfer Taxes and Expenses.
The issuance of Series A Conversion Shares on conversion of Series
A Preferred Stock shall be made without charge to any Series A
Holder for any documentary stamp or similar taxes that may be
payable in respect of the issue or delivery of such Series A
Conversion Shares, provided that the Corporation shall not be
required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such Series A
Conversion Shares upon conversion in a name other than that of the
Series A Holders of such shares of Series A Preferred Stock and the
Corporation shall not be required to issue or deliver such Series A
Conversion Shares unless or until the Person (as defined below) or
Persons requesting the issuance thereof shall have paid to the
Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax has been paid. For
purposes hereof, “Person” means an individual or
corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other
entity of any kind.
(c) Vote.
Other than as set forth in Section
1(i) and Section
1(j), each share of Series
A Preferred Stock a number of votes equal to the number of
Conversion Shares into which such share of Series A Preferred Stock
may then be converted, or deemed convertible pursuant to the
provisions of Section 1(h), on any matter submitted to the holders of the
Common Stock, or any class
thereof, for a vote, and shall vote together with the Common Stock,
or any class thereof, as applicable, on such matter for as long as
the share of Series A Preferred Stock is issued and
outstanding.
(d) Dividends. Series A Holders
shall be entitled to receive, and the Corporation shall pay, such
dividends and other distributions, on shares of Series A Preferred
Stock as and when paid on the Common Stock, payable on the Series A
Preferred Stock on an as-converted basis (i.e., assuming that the
Series A Preferred Stock was otherwise convertible at such time
or deemed convertible pursuant to the
provisions of Section 1(h)).
(e) No Preferences upon
Liquidation. In the event of
any liquidation, dissolution or winding up of the Corporation,
either voluntarily or involuntarily, a merger or consolidation of
the Corporation wherein the Corporation is not the surviving
entity, or a sale of all or substantially all of the assets of the
Corporation, the Series A Preferred Stock shall not be entitled to
receive any distribution of any of the assets or surplus funds of
the Corporation but shall participate with the Common Stock on any
such distributions on an as-converted basis (i.e., assuming
that the Series A Preferred Stock was otherwise convertible at such
time or deemed convertible pursuant to
the provisions of Section 1(h)).
(f) Participation.
The Series A Preferred Stock shall participate in any distributions
or payments to the holders of the Common Stock on an as-converted
basis (i.e., assuming that the Series A Preferred Stock was
otherwise convertible at such time or
deemed convertible pursuant to the provisions of Section
1(h)), but shall not
participate in any distributions to any other classes of Preferred
Stock of the Corporation other than those made to such other
classes of Preferred Stock which are convertible into shares of
Common Stock and which are entitled to such distributions or
payments on an as-converted basis.
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(g) Adjustments.
The Conversion Ratio shall be subject
to proportional and equitable adjustments following the date hereof
for splits, combinations or dividends relating to the Common Stock,
or combinations, recapitalization, reclassifications, extraordinary
distributions and similar events that occur on or after the date
hereof. By way of example and not limitation, in the event of
forward split of the Common Stock following the date hereof, in
which each share of Common Stock is converted into two shares of
Common Stock, the Conversion Ratio shall be increased by 100%, such
that each share of Series A Preferred Stock is convertible into
1,200 shares of Common Stock; and in the event of a reverse split
of the Common Stock following the date hereof in which each two
shares of Common Stock are converted into one share of Common
Stock, the Conversion Ratio shall be reduced by 50%, such that each
share of Series A Preferred Stock is convertible into 300 shares of
Common Stock.
(h) Rights
Applicable. For the avoidance
of doubt, in the event that there are not a sufficient number of
authorized but unissued shares of Common Stock available at any
time to provide for full conversion of the Series A Preferred
Stock, each share of Series A Preferred Stock shall nevertheless be
deemed convertible into the applicable Conversion Shares and shall
have the rights and preferences set forth herein assuming that
there did exist a sufficient number of authorized but unissued
shares of Common Stock available at any time to provide for full
conversion of the Series A Preferred Stock, with the intent being
that the Series A Preferred Stock shall have the rights and
preferences as set forth herein on an as-converted basis,
notwithstanding the inability of such shares of Series A Preferred
Stock to actually be converted into shares of Common Stock due to
the lack of authorized but unissued shares of Common
Stock.
(i) Amendment.
The Corporation may not, and shall not, amend or repeal this
Certificate of Designations without the prior written consent of
Series A Holders holding a majority of the Series A Preferred Stock
then issued and outstanding, in which vote each share of Series A
Preferred Stock then issued and outstanding shall have one vote,
voting separately as a single class, in person or by proxy, either
in writing without a meeting or at an annual or a special meeting
of such Series A Holders.
(j) Protective Provisions. In
addition to any other rights and restrictions provided under
applicable law, without first obtaining the affirmative vote or
written consent of the Series A Holders holding a majority of the
shares of Series A Preferred Stock, with each share of Series A
Preferred Stock having one vote on such matter the Corporation
shall not amend or repeal any provision of, or add any provision
to, the Corporation’s Articles of Incorporation or bylaws if
such action would adversely alter or change the preferences,
rights, privileges, or powers of, or restrictions provided for the
benefit of, the Series A Preferred Stock and any such act or
transaction entered into without such vote or consent shall be null
and void ab initio, and of
no force or effect.
Section
2. Miscellaneous.
(a) Legend.
Any certificates representing the Series A Preferred Stock shall
bear a restrictive legend in substantially the following form (and
a stop transfer order may be placed against transfer of such stock
certificates):
THE
SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR REGISTERED NOR
QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT
BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED,
PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER
APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, SUCH
QUALIFICATION AND REGISTRATION IS NOT REQUIRED. ANY TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS FURTHER SUBJECT TO
OTHER RESTRICTIONS, TERMS AND CONDITIONS WHICH ARE SET FORTH
HEREIN.
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(b) Lost
or Mutilated Series A Preferred Stock
Certificate. If the certificate
for the Series A Preferred Stock held by the Series A Holder
thereof shall be mutilated, lost, stolen or destroyed, the
Corporation shall execute and deliver, in exchange and substitution
for and upon cancellation of a mutilated certificate, or in lieu of
or in substitution for a lost, stolen or destroyed certificate, a
new certificate for the share of Series A Preferred Stock so
mutilated, lost, stolen or destroyed but only upon receipt of
evidence of such loss, theft or destruction of such certificate,
and of the ownership hereof, and indemnity, if requested, all
reasonably satisfactory to the Corporation.
(c) Interpretation.
If the Series A Holder shall commence an action or proceeding to
enforce any provisions of this Certificate of
Designations, then the prevailing
party in such action or proceeding shall be reimbursed by the other
party for its attorney’s fees and other costs and expenses
incurred with the investigation, preparation and prosecution of
such action or proceeding.
(d) Waiver.
Any waiver by the Corporation or the Series A Holder of a breach of
any provision of this Certificate of Designations
shall not operate as or be construed
to be a waiver of any other breach of such provision or of any
breach of any other provision of this Certificate of
Designations. The failure of the
Corporation or the Series A Holder to insist upon strict adherence
to any term of this Certificate of Designations on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this
Certificate of Designations. Any
waiver must be in writing.
(e) Severability.
If any provision of this Certificate of Designations
is invalid, illegal or unenforceable,
the balance of this Certificate of Designations shall remain in effect, and if any provision is
inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances. If it
shall be found that any interest or other amount deemed interest
due hereunder violates applicable laws governing usury, the
applicable rate of interest due hereunder shall automatically be
lowered to equal the maximum permitted rate of
interest.
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Annex
A
Series
A Notice of Conversion
(To be
executed by a Series A Holder in order to convert shares of Series
A Preferred Stock)
Subject
to the terms and conditions of the Articles of Incorporation of
Sollensys Corp., a Nevada corporation (the
“Corporation”), the undersigned hereby elects to
convert the number of shares of Series A 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, according to the conditions hereof, as of the date
written below.
Conversion
calculations:
|
Date to
Effect Conversion:
|
____________________________
|
|
Number
of shares of Series A Preferred Stock held prior to
conversion:
|
____________________________
|
|
Number
of shares of Series A Preferred Stock to be converted:
|
____________________________
|
|
Number
of shares of Common Stock to be issued:
|
____________________________
|
|
Number
of shares of Series A Preferred Stock held subsequent to
conversion:
|
____________________________
|
|
Address
for Delivery:
|
____________________________
____________________________
____________________________
____________________________
|
Series
A Holder Name: ______________________________
Signature:
______________________________
By:
______________________________
Title
(if applicable): ______________________________
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IN WITNESS WHEREOF, Sollensys Corp., a
Nevada corporation, has caused this
Certificate of Designations to be signed by a duly authorized
officer on this 6th
day of October,
2020.
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