Attached files
Exhibit
3.3
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES D CONVERTIBLE PREFERRED STOCK
The
undersigned, Chief Executive Officer of Exactus, Inc., a Nevada
corporation (the “Corporation”), DOES HEREBY CERTIFY
that the following resolutions were duly adopted by the Board of
Directors of the Corporation by unanimous written consent on June
__, 2021;
WHEREAS, the Board of Directors is
authorized within the limitations and
restrictions stated in the Certificate of Incorporation of the
Corporation, as amended, to provide by resolution or resolutions
for the issuance of Fifty
Million (50,000,000) shares of Preferred Stock, par value $0.0001 per share, of the Corporation,
in such series and with such designations, preferences and
relative, optional or other special rights and qualifications,
limitations or restrictions as the Corporation’s Board of
Directors shall fix by resolution or resolutions providing for the
issuance thereof duly adopted by the Board of Directors;
and
WHEREAS, it is the desire of the Board of
Directors, pursuant to its authority as aforesaid, to authorize and
fix the terms of a series of Preferred Stock and the number of
shares constituting such series; and
WHEREAS, all
currency amounts set forth herein shall be stated in United States
Dollars (USD).
NOW,
THEREFORE, BE IT RESOLVED:
1. Designation and Authorized
Shares. The Corporation shall be authorized to issue ten
thousand (10,000) shares of Series D Convertible Preferred Stock,
par value $0.0001 per share (the “Series D Preferred
Stock”).
2. Stated
Value. Each share of Series D
Preferred Stock shall have a stated value of $430 per share
(the “Stated Value”).
3. Liquidation.
3.1 Upon the
liquidation, dissolution or winding up of the business of the
Corporation, whether voluntary or involuntary, each holder of
Series D Preferred Stock shall be entitled to receive, for each
share thereof, out of assets of the Corporation legally available
therefor, a preferential amount in cash equal to (and not more
than) the Stated Value. All preferential amounts to be paid to the
holders of Series D Preferred Stock in connection with such
liquidation, dissolution or winding up shall be paid before the
payment or setting apart for payment of any amount for, or the
distribution of any assets of the Corporation to the holders of any
other class or series of capital stock of the Corporation other
than Series A Preferred Stock and Series B Preferred Stock of the
Corporation, which shall be senior securities to the Series D
Preferred Stock, and Series C Convertible Preferred Stock and
Series C-1 Convertible Preferred Stock which shall rank parri passu
with the Series D Preferred Stock. If upon any such distribution
the assets of the Corporation shall be insufficient to pay the
holders of the outstanding shares of Series D Preferred Stock, the
Series C Convertible Preferred Stock and the Series C-1 Convertible
Preferred Stock the full amounts to which they shall be entitled,
such holders shall share ratably in any distribution of assets in
accordance with the sums which would be payable on such
distribution if all sums payable thereon were paid in
full.
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3.2 Any
distribution in connection with the liquidation, dissolution or
winding up of the Corporation, or any bankruptcy or insolvency
proceeding, shall be made in cash to the extent possible. Whenever
any such distribution shall be paid in property other than cash,
the value of such distribution shall be the fair market value of
such property as determined in good faith by the Board of Directors
of the Corporation.
4. Voting.
Except as otherwise expressly required by law, each holder of
Series D Preferred Stock shall be entitled to vote on all matters
submitted to shareholders of the Corporation and shall be entitled
to the number of votes for each share of Series D Preferred Stock
owned at the record date for the determination of shareholders
entitled to vote on such matter or, if no such record date is
established, at the date such vote is taken or any written consent
of shareholders is solicited, equal to the number of shares of
Common Stock (as defined below) that such shares of Series D
Preferred Stock are convertible into at such time. Except as
otherwise required by law, the holders of shares of Series D
Preferred Stock shall vote together with the holders of Common
Stock on all matters and shall not vote as a separate
class.
5. Conversion.
5.1 Conversion Right. Each holder
of Series D Preferred Stock may, from time to time, convert any or
all of such holder’s shares of Series D Preferred Stock into
fully paid and non-assessable shares of Common Stock in an amount
equal to 4,558.75186 shares of the Corporation’s common
stock, par value $0.0001 per share (the “Common Stock”)
for each one (1) share of Series D Preferred Stock surrendered (the
“Conversion Rate”). The Corporation shall not issue any
fraction of a share of Common Stock upon any conversion. If the
issuance would result in the issuance of a fraction of a share of
Common Stock, the Corporation shall round such fraction of a share
of Common Stock up to the nearest whole share.
5.2 Conversion
Procedure. In order to exercise
the conversion privilege under this Section 5, the holder of any
shares of Series D Preferred Stock to be converted shall give
written notice to the Corporation at its principal office that such
holder elects to convert such shares of Series D Preferred Stock or
a specified portion thereof into shares of Common Stock as set
forth in such notice (the “Conversion Notice”, and such date
of delivery of the Conversion Notice to the Corporation, the
“Conversion Notice Delivery
Date”). Within two (2) business days following the
Conversion Notice Delivery Date, the Corporation shall issue and
deliver a certificate or certificates representing the number of
shares of Common Stock determined pursuant to this Section 5 (the
“Share Delivery
Date”). In case of conversion under this Section 5 of
only a part of the shares of Series D Preferred Stock represented
by a certificate surrendered to the Corporation, the Corporation
upon the request of a holder shall issue and deliver to the holder
or its designee a new certificate for the number of shares of
Series D Preferred Stock which have not been converted, upon
receipt of the original certificate or certificates representing
shares of Series D Preferred Stock so converted. Until such time as
the certificate or certificates representing shares of Series D
Preferred Stock which have been converted are surrendered to the
Corporation and a certificate or certificates representing the
Common Stock into which such shares of Series D Preferred Stock
have been converted have been issued and delivered, the certificate
or certificates representing the shares of Series D Preferred Stock
which have been converted shall represent the shares of Common
Stock into which such shares of Series D Preferred Stock have been
converted. The Corporation shall pay all documentary, stamp or
similar issue or transfer tax due on the issue of shares of Common
Stock issuable upon conversion of the Series D Preferred
Stock.
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(i) Buy-In. If, by the Share Delivery Date,
the Corporation fails for any reason to deliver the shares of
Common Stock issuable upon conversion of the Series D Preferred
Stock, as set forth in the Conversion Notice, and after such Share
Delivery Date, the converting holder purchases, in an arm’s
length open market transaction or otherwise, shares of Common Stock
(the “Covering
Shares”) in order to make delivery in satisfaction of
a sale of Common Stock by the converting holder (the
“Sold Shares”),
which delivery such converting holder anticipated to make using the
shares to be issued upon such conversion (a “Buy-In”), the converting holder
shall have the right to require the Corporation to pay to the
converting holder the Buy-In Adjustment Amount. The
Corporation shall pay the Buy-In Adjustment Amount to the
converting holder in immediately available funds immediately upon
demand by the converting holder. For purposes of this Certificate
of Designation, the term “Buy-In Adjustment Amount” means
the amount equal to the excess, if any, of (i) the converting
holder’s total purchase price (including brokerage
commissions, if any) for the Covering Shares associated with a
Buy-In, over (ii) the net proceeds (after brokerage
commissions, if any) received by the converting holder from the
sale of the Sold Shares. By way of illustration and not
in limitation of the foregoing, if the converting holder purchases
shares of Common Stock having a total purchase price (including
brokerage commissions) of $11,000 to cover a Buy-In, with respect
to shares of Common Stock it sold for net proceeds of $10,000, the
Buy-In Adjustment Amount which the Corporation will be required to
pay to the converting holder will be $1,000.
5.3 Other Provisions.
(i) Reservation
of Common Stock. The
Corporation shall at all times reserve from its authorized Common
Stock a sufficient number of shares to provide for conversion of
all Series D Preferred Stock from time to time
outstanding.
(ii) Record
Holders. The Corporation and
its transfer agent, if any, for the Series D Preferred Stock may
deem and treat the record holder of any shares of Series D
Preferred Stock as reflected on the books and records of the
Corporation as the sole true and lawful owner thereof for all
purposes, and neither the Corporation nor any such transfer agent
shall be affected by any notice to the
contrary.
(iii) Restriction
and Limitations. Except as expressly provided herein or as
required by law so long as any shares of Series D Preferred Stock
remain outstanding, the Corporation shall not, without the vote or
written consent of the holders of at least a majority of the then
outstanding shares of the Series D Preferred Stock, take any action
to modify the terms of the shares of Series D Preferred Stock or
take any other action, including the creation of a new class or
series of stock in the Corporation or the modification of the terms
of any existing series or class of stock in the Corporation, which
would, in the reasonable opinion of the holder, adversely affect
any of the preferences, limitations or relative rights of the
Series D Preferred Stock.
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6. Certain
Adjustments.
6.1 Stock Dividends and
Stock Splits. If the Corporation, at any time while the
Series D Preferred Stock is outstanding: (A) shall pay a stock
dividend or otherwise make a distribution or distributions on
shares of its Common Stock or any other equity or equity equivalent
securities payable in shares of Common Stock (which, for avoidance
of doubt, shall not include any shares of Common Stock issued by
the Corporation pursuant to the Series D Preferred Stock), (B)
subdivide outstanding shares of Common Stock into a larger number
of shares, (C) combine (including by way of reverse stock split)
outstanding shares of Common Stock into a smaller number of shares,
or (D) issue by reclassification of shares of the Common Stock any
shares of capital stock of the Corporation, the Conversion Rate in
effect immediately prior to any such event shall be proportionately
adjusted, and each share of Series D Preferred Stock shall receive
such consideration as if such number of shares of Series D
Preferred Stock had been, immediately prior to such foregoing
dividend, distribution, subdivision, combination or
reclassification, the holder of the number of shares of Common
Stock into which it could convert at such time. Any adjustment made
pursuant to this Section shall become effective immediately upon
the record date for the determination of stockholders entitled to
receive such dividend or distribution and shall become effective
immediately upon the effective date in the case of a subdivision,
combination or re-classification.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate this
___ day of June 2021.
By:
S/
Larry Wert
Name:
Larry Wert
Title:
Chief Executive Officer
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