SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 13, 2015
BASTA HOLDINGS, CORP.
(Exact Name of Registrant as Specified in Charter)
(State or other jurisdiction
|(Commission File Number)||(IRS Employer Identification No.)|
610 SW 34 th Street, Building 3, Suite 202
Fort Lauderdale, FL
|(Address of principal executive offices)||(Zip Code)|
Registrant’s telephone number, including area code: (305) 867-1228
Thomas Rose, Esq.
Sichenzia Ross Friedman Ference LLP
61 Broadway, 32 nd Floor
New York, New York 10006
Telephone: (212) 930-9700
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))|
This Current Report on Form 8-K contains forward-looking statements. Forward-looking statements include statements concerning plans, objectives, goals, strategies, future events or performance, and underlying assumptions and other statements that are other than statements of historical facts. These statements are subject to uncertainties and risks including, but not limited to (i) securing capital for general working purposes, and (ii) other risks and in statements filed from time to time with the Securities and Exchange Commission (the “ SEC ”). All such forward-looking statements, whether written or oral, and whether made by or on behalf of the Company, are expressly qualified by the cautionary statements and any other cautionary statements which may accompany the forward-looking statements. In addition, the Company disclaims any obligation to, and will not, update any forward-looking statements to reflect events or circumstances after the date hereof.
|ITEM 1.01||ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT|
On March 12, 2015, Basta Holdings, Corp. (the “ Company ”) entered into the Financial Advisory Agreement appended hereto as Exhibit 10.1 (the “ Agreement ”) with The Vantage Group, Ltd. (the “ Consultant ”) pursuant to which it agreed to designate and issue to the Consultant a number of shares of preferred stock (the “ Series C Preferred Stock ”) that would upon conversion represent 9.99% of the Company’s issued and outstanding shares of common stock, par value $0.001 per share (the “ Common Stock ”), calculated on a fully diluted basis. The shares of Series C Preferred Stock will be issued to the Consultant in reliance upon the exemption provided by Section 4(a)(2) of the Securities Act of 1933, as amended.
|ITEM 3.02||UNREGISTERED SALES OF EQUITY SECURITIES|
Please see Item 1.01 (Entry into a Material Definitive Agreement) of this current report on Form 8-K, which is incorporated herein by reference.
|ITEM 5.03||AMENDMENTS TO ARTICLES OF INCORPORATION; CHANGE IN FISCAL YEAR|
On March 28, 2015, the Board as well as its majority stockholder (the “ Majority Holder ”) approved amended and restated articles of incorporation (as so amended, the “ Articles ”) to, among other items, increase the authorized preferred stock of the Company from 10,000,000 to 20,000,000 (the “ Preferred Stock ”). On March 31, 2015, the Company filed the Certificate with the Secretary of State of the State of Nevada. The Articles are effective as of April 1, 2015. The foregoing description does not purport to be complete and is qualified in its entirety by reference to the complete text of the Articles, which is attached hereto as Exhibit 3.1 and incorporated herein by reference.
In addition, on March 28, 2015 the Board adopted amended and restated bylaws, which bylaws are appended hereto as Exhibit 3.2 and incorporated herein by reference.
|Item 9.01||Financial Statements and Exhibits|
(d) Exhibits .
|3.1||Amended and Restated Articles of Incorporation|
|3.2||Amended and Restated Bylaws|
|10.1||Financial Advisory Agreement|
|- 2 -|
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.
|BASTA HOLDINGS, CORP.|
|Date: April 13, 2015||By:||/s/ Dr. Jacob Gitman, PhD.|
|Dr. Jacob Gitman, PhD.|
|Chief Executive Officer|
|- 3 -|
AMENDED AND RESTATED ARTICLES OF INCORPORATION
BASTA HOLDINGS, CORP.
Basta Holdings, Corp., a corporation organized and existing under the laws of the State of Nevada (the “ Corporation ”), hereby certifies as follows:
1. The current name of the corporation is Basta Holdings, Corp.
2. The date of filing of its original Articles of Incorporation with the Secretary of State was May 11, 2011.
3. These Amended and Restated Articles of Incorporation have been duly approved by the Unanimous Written Consent of the Board of Directors of the Corporation in lieu of a meeting, dated as of March 28, 2015, and by the Written Consent of the holder of a majority of the Corporation’s issued and outstanding shares of common stock dated as of March 28, 2015 in accordance with the provisions of Sections 78.390 and 78.403 of the Nevada Revised Statutes. The effective date of these Amended and Restated Articles shall be March 30, 2015.
4. The provisions of the Articles of Incorporation of the Corporation as heretofore amended and/or supplemented are hereby restated, integrated and further amended to read in their entirety as follows:
The name of the corporation is Basta Holdings, Corp. (the “ Corporation ”).
The purpose of the business for which this Corporation is organized is to engage in any lawful act or activity for which corporations may be organized under the laws of the State of Nevada.
The powers of the Corporation shall be those powers granted by Sections 78.060 and 78.070 (as the same may be amended, superseded or replaced by any successor sections, statutes or provisions) of the Nevada Revised Statutes (the “ NRS ”), under which this Corporation is formed.
Section 1. Authorized Shares. Upon the filing of these Amended and Restated Articles of Incorporation with the Secretary of State of the State of Nevada, the aggregate number of shares which the Corporation is authorized to issue shall be increased to five hundred and seventy million (270,000,000), divided into classes as follows:
A. Two hundred fifty million (250,000,000) shares of common stock, $0.001 par value per share (the “ Common Stock ”);
B. Twenty million (20,000,000) shares of preferred stock, $0.001 par value per share, to be issued in series (the “ Preferred Stock ”).
The following is a statement of the designations, powers, preferences and rights, and the qualifications, limitations or restrictions with respect to the Preferred Stock of the Corporation: The shares of Preferred Stock may be issued in one or more series, and each series shall be so designated as to distinguish the shares thereof from the shares of all other series. Authority is hereby expressly granted to the Board to fix, subject to the provisions herein set forth, before the issuance of any shares of a particular series, the number, designations and relative rights, preferences, and limitations of the shares of such series including (1) voting rights, if any, which may include the right to vote together as a single class with the Common Stock and any other series of the Preferred Stock with the number of votes per share accorded to shares of such series being the same as or different from that accorded to such other shares, (2) the dividend rate per annum, if any, and the terms and conditions pertaining to dividends and whether such dividends shall be cumulative, (3) the amount or amounts payable upon such voluntary or involuntary liquidation, (4) the redemption price or prices, if any, and the terms and conditions of the redemption, (5) sinking fund provisions, if any, for the redemption or purchase of such shares, (6) the terms and conditions on which such shares are convertible, in the event the shares are to have conversion rights, and (7) any other rights, preferences and limitations pertaining to such series which may be fixed by the Board pursuant to the NRS.
Section 2. Voting Rights of Stockholders. Each holder of the Common Stock shall be entitled to one vote for each share of stock standing in his name on the books of the Corporation.
Section 3. Consideration for Shares. The Common Stock shall be issued for such consideration, as shall be fixed from time to time by the Board of Directors. In the absence of fraud, the judgment of the directors as to the value of any property for shares shall be conclusive.
Section 4. Pre-Emptive Rights. Except as may otherwise be provided by the Board of Directors, no holder of any shares of the stock of the Corporation, shall have any preemptive right to purchase, subscribe for, or otherwise acquire any shares of stock of the Corporation of any class now or hereafter authorized, or any securities exchangeable for or convertible into such shares, or any warrants or other instruments evidencing rights or options to subscribe for, purchase, or otherwise acquire such shares.
Section 5. Stock Rights and Options. The Corporation shall have the power to create and issue rights, warrants, or options entitling the holders thereof to purchase from the Corporation any shares of its capital stock of any class or classes, upon such terms and conditions and at such times and prices as the Board of Directors may provide, which terms and conditions shall be incorporated in an instrument or instruments evidencing such rights. In the absence of fraud, the judgment of the directors as to the adequacy of consideration for the issuance of such rights or options and the sufficiency thereof shall be conclusive.
ASSESSMENT OF STOCK
The capital stock of this Corporation, after the amount of the subscription price has been fully paid in, shall not be assessable for any purpose, and no stock issued as fully paid up shall ever be assessable or assessed. The holders of such stock shall not be individually responsible for the debts, contracts, or liabilities of the Corporation and shall not be liable for assessments to restore impairments in the capital of the Corporation.
The members of the governing board of the Corporation shall be known as the Board of Directors. The number of directors comprising the Board of Directors shall be determined from time to time as in the manner provided for in the bylaws of the Corporation.
LIMITATION OF LIABILITY; INDEMNIFICATION
A. To the maximum extent permitted under the NRS, no director or officer of the Corporation shall be personally liable to the Corporation or its stockholders for damages as a result of any act or failure to act in his capacity as a director or officer.
B. The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person, his/her testator or intestate is or was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation. The Corporation shall have the authority to indemnify to the fullest extent permitted by law any other employee or agent of the Corporation made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person, his/her testator or intestate is or was an employee or agent of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as an employee or agent at the request of the Corporation or any predecessor to the Corporation.
C. Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of the Corporation's Articles of Incorporation inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VII, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
Subject to the terms of these Articles of Incorporation, and to the fullest extent permitted by the NRS, the Corporation shall be expressly permitted to redeem, repurchase or make distributions on the shares of its capital stock in all circumstances other than where doing so would cause the Corporation to be unable to pay its debts as they become due in the usual course of business.
COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation elects not to be governed by the terms and provisions of Sections 78.411 through 78.444, inclusive, of the NRS, as the same may be amended, superseded or replaced by any successor section, statute or provision.
PLACE OF MEETING; CORPORATE BOOKS
Subject to the laws of the State of Nevada, the stockholders and the directors shall have power to hold their meetings, and the directors shall have power to have an office or offices and to maintain the books of the Corporation outside the State of Nevada, at such place or places as may from time to time be designated in the bylaws of the Corporation or by appropriate resolution.
AMENDMENT OF ARTICLES
The provisions of these Articles of Incorporation may be amended, altered or repealed from time to time to the extent and in the manner prescribed by the laws of the State of Nevada, and additional provisions authorized by such laws as are then in force may be added. All rights herein conferred on the directors, officers and stockholders are granted subject to this reservation.
IN WITNESS WHEREOF , said Basta Holdings, Corp. has caused these Articles to be signed by Dr. Jacob Gitman, its President, as of March 30, 2015.
|BASTA HOLDINGS. CORP.|
|By:||/s/ Dr. Jacob Gitman|
|Dr. Jacob Gitman|
AMENDED AND RESTATED BYLAWS
BASTA HOLDINGS, CORP.
Section 1.1. Registered Office . The registered office and registered agent of the Corporation shall be as from time to time set forth in the Corporation’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”).
Section 1.2. Other Offices . The Corporation may also have offices at such other places, both within and without the State of Nevada, as the Board of Directors may from time to time determine or the business of the Corporation may require.
Section 2.1. Place of Meetings . All meetings of the stockholders for the election of Directors shall be held at such place, within or without the State of Nevada, as may be fixed from time to time by the Board of Directors. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Nevada, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2.2. Annual Meeting . An annual meeting of the stockholders shall be held at such time as may be determined by the Board of Directors, at which meeting the stockholders shall elect a Board of Directors and transact such other business as may properly be brought before the meeting.
Section 2.3. List of Stockholders . At least ten days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order, with the address of and the number of voting shares registered in the name of each, shall be prepared by the officer or agent having charge of the stock transfer books. Such list shall be kept on file at the registered office of the Corporation for a period of ten days prior to such meeting and shall be subject to inspection by any stockholder at any time during usual business hours. Such list shall be produced and kept open at the time and place of the meeting during the whole time thereof, and shall be subject to the inspection of any stockholder who may be present.
Section 2.4. Special Meetings . Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law, by the Articles of Incorporation or by these Bylaws, may be called by the Chief Executive Officer (if any) or the President or the Board of Directors. Business transacted at all special meetings shall be confined to the purposes stated in the notice of the meeting unless all stockholders entitled to vote are present and consent.
Section 2.5. Notice . Written or printed notice stating the place, day and hour of any meeting of the stockholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the Chief Executive Officer (if any), the President, the Secretary, or the officer or person calling the meeting, to each stockholder of record entitled to vote at the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the mail, addressed to the stockholder at his address as it appears on the stock transfer books and records of the Corporation or its transfer agent, with postage thereon prepaid.
Section 2.6. Quorum . At all meetings of the stockholders, the presence in person or by proxy of the holders of a majority of the shares issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business except as otherwise provided by law, by the Articles of Incorporation or by these Bylaws. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.
Section 2.7. Voting . When a quorum is present at any meeting of the Corporation’s stockholders, the vote of the holders of a majority of the shares having voting power present in person or represented by proxy at such meeting shall decide any questions brought before such meeting, unless the question is one upon which, by express provision of law, the Articles of Incorporation or these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 2.8. Method of Voting . Each outstanding share of the Corporation’s capital stock shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders, except to the extent that the voting rights of the shares of any class or classes are otherwise provided by applicable law or the Articles of Incorporation, as amended from time to time. At any meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder or by his duly authorized attorney-in-fact and bearing a date not more than 6 months prior to such meeting, unless such instrument provides for a longer period. Each proxy shall be revocable unless expressly provided therein to be irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power. Such proxy shall be filed with the Secretary of the Corporation prior to or at the time of the meeting. Voting for directors shall be in accordance with Article III of these Bylaws. Voting on any question or in any election may be by voice vote or show of hands unless the presiding officer shall order or any stockholder shall demand that voting be by written ballot.
Section 2.9. Record Date; Closing Transfer Books . The Board of Directors may fix in advance a record date for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such record date to be not less than ten nor more than sixty days prior to such meeting, or the Board of Directors may close the stock transfer books for such purpose for a period of not less than ten nor more than sixty days prior to such meeting. In the absence of any action by the Board of Directors, the date upon which the notice of the meeting is mailed shall be the record date.
Section 2.10. Action By Written Consent . Any action required or permitted by law, the Articles of Incorporation, or these Bylaws to be taken at a meeting of the stockholders of the Corporation may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by stockholders holding at least a majority of the voting power; provided that if a different proportion of voting power is required for such an action at a meeting, then that proportion of written consents is required. Such signed consent shall be delivered to the Secretary for inclusion in the Minute Book of the Corporation.
BOARD OF DIRECTORS
Section 3.1. Management . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, who may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, the Articles of Incorporation, a stockholders’ agreement or these Bylaws directed or required to be exercised or done by the stockholders.
Section 3.2. Qualification; Election; Term . None of the directors need be a stockholder of the Corporation or a resident of the State of Nevada. The directors shall be elected by plurality vote at the annual meeting of the stockholders, except as hereinafter provided, and each director elected shall hold office until his successor shall be elected and qualified.
Section 3.3. Number . The number of directors of the Corporation shall be fixed as the Board of Directors may from time to time designate. No decrease in the number of directors shall have the effect of shortening the term of any incumbent director.
Section 3.4. Removal . Any director may be removed either for or without cause at any special meeting of stockholders by the affirmative vote of at least two-thirds of the voting power of the issued and outstanding stock entitled to vote; provided, however, that notice of intention to act upon such matter shall have been given in the notice calling such meeting.
Section 3.5. Vacancies . Any vacancy occurring in the Board of Directors by death, resignation, removal or otherwise may be filled by an affirmative vote of at least a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. A directorship to be filled by reason of an increase in the number of directors may be filled by the Board of Directors for a term of office only until the next election of one or more directors by the stockholders.
Section 3.6. Place of Meetings . Meetings of the Board of Directors, regular or special, may be held at such place within or without the State of Nevada as may be fixed from time to time by the Board of Directors.
Section 3.7. Annual Meeting . The first meeting of each newly elected Board of Directors shall be held without further notice immediately following the annual meeting of stockholders and at the same place, unless by unanimous consent or unless the directors then elected and serving shall change such time or place.
Section 3.8. Regular Meetings . Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to time be determined by resolution of the Board of Directors.
Section 3.9. Special Meetings . Special meetings of the Board of Directors may be called by the Chief Executive Officer (if any) or President on oral or written notice to each director, given either personally, by telephone, by telegram or by mail, given at least forty-eight hours prior to the time of the meeting. Special meetings shall be called by the Chief Executive Officer, President or the Secretary in like manner and on like notice on the written request of a majority of directors. Except as may be otherwise expressly provided by law, the Articles of Incorporation or these Bylaws, neither the business to be transacted at, nor the purpose of, any special meeting need to be specified in a notice or waiver of notice.
Section 3.10. Quorum . At all meetings of the Board of Directors the presence of a majority of the number of directors shall be necessary and sufficient to constitute a quorum for the transaction of business, and the affirmative vote of at least a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law, the Articles of Incorporation or these Bylaws. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.11. Interested Directors . No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (1) the fact as to his relationship or interest and as to the contract or transaction is known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the fact as to his relationship or interest and as to the contract or transaction is known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved, or ratified by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
Section 3.12. Committees . The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate committees, each committee to consist of two or more directors of the Corporation, which committees shall have such power and authority and shall perform such functions as may be provided in such resolution. Such committee or committees shall have such name or names as may be designated by the Board of Directors and shall keep regular minutes of their proceedings and report the same to the Board of Directors when required.
Section 3.13. Action by Written Consent . Any action required or permitted to be taken at any meeting of the Board of Directors or any committee of the Board of Directors may be taken without such a meeting if a consent or consents in writing, setting forth the action so taken, is signed by all the members of the Board of Directors or such other committee, as the case may be.
Section 3.14. Compensation of Directors . Directors shall receive such compensation for their services, and reimbursement for their expenses as the Board of Directors, by resolution, shall establish; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 4.1. Form of Notice . Whenever required by law, the Articles of Incorporation or these Bylaws, notice is to be given to any director or stockholder, and no provision is made as to how such notice shall be given, such notice may be given: (a) in writing, by mail, postage prepaid, addressed to such director or stockholder at such address as appears on the books and records of the Corporation or its transfer agent; or (b) in any other method permitted by law. Any notice required or permitted to be given by mail shall be deemed to be given at the time when the same shall be deposited in the United States mail.
Section 4.2. Waiver . Whenever any notice is required to be given to any stockholder or director of the Corporation as required by law, the Articles of Incorporation or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated in such notice, shall be equivalent to the giving of such notice. Attendance of a stockholder or director at a meeting shall constitute a waiver of notice of such meeting, except where such stockholder or director attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
OFFICERS AND AGENTS
Section 5.1. In General . The officers of the Corporation shall be elected by the Board of Directors and shall be a President, a Treasurer, and a Secretary. The Board of Directors may also elect a Chairman of the Board of Directors, a Chief Executive Officer, a Chief Operating Officer, a Chief Financial Officer, and one or more Vice Presidents, Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any two or more offices may be held by the same person.
Section 5.2. Election . The Board of Directors, at its first meeting after each annual meeting of stockholders, shall elect the officers, none of whom need be a member of the Board of Directors.
Section 5.3. Other Officers and Agents . The Board of Directors may also elect and appoint such other officers and agents as it shall deem necessary, who shall be elected and appointed for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.
Section 5.4. Salaries . The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors or any committee of the Board of Directors, if so authorized by the Board of Directors.
Section 5.5. Term of Office and Removal . Each officer of the Corporation shall hold office until his death, or his resignation or removal from office, or the election and qualification of his successor, whichever shall first occur. Any officer or agent elected or appointed by the Board of Directors may be removed at any time, for or without cause, by the affirmative vote of a majority of the whole Board of Directors, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
Section 5.6. Employment and Other Contracts . The Board of Directors may authorize any officer or officers or agent or agents to enter into any contract or execute and deliver any instrument in the name or on behalf of the Corporation, and such authority may be general or confined to specific instances. The Board of Directors may, when it believes the interest of the Corporation will best be served thereby, authorize executive employment contracts which will contain such terms and conditions as the Board of Directors deems appropriate.
Section 5.7. Chairman of the Board of Directors . The Chairman of the Board of Directors, subject to the direction of the Board of Directors, shall perform such executive, supervisory and management functions and duties as from time to time may be assigned to him or her by the Board of Directors. The Chairman of the Board of Directors shall preside at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors.
Section 5.8. Chief Executive Officer . The Chief Executive Officer shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer shall preside at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors in the absence of the Chairman of the Board of Directors.
Section 5.9. President . The President shall be subject to the direction of the Board of Directors and the Chief Executive Officer (if any), and shall have general charge of the business, affairs and property of the Corporation and general supervision over its other officers and agents. The President shall see that the officers carry all orders and resolutions of the Board of Directors into effect. The President shall execute all authorized conveyances, contracts, or other obligations in the name of the Corporation except where required by law to be otherwise signed and executed and except where the signing and execution shall be expressly delegated by the Board of Directors to another officer or agent of the Corporation or reserved to the Board of Directors or any committee thereof. The President shall preside at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors in the absence of the Chairman of the Board of Directors and the Chief Executive Officer. The President shall perform all duties incident to the office of the President and such other duties as may be prescribed by the Board of Directors from time to time.
Section 5.10. Chief Operating Officer . The Chief Operating Officer shall be subject to the direction of the Chief Executive Officer (if any), the President and the Board of Directors and shall have day-to-day managerial responsibility for the operation of the Corporation.
Section 5.11. Chief Financial Officer . The Chief Financial Officer shall be subject to the direction of the Chief Executive Officer (if any), the President and the Board of Directors and shall have day-to-day managerial responsibility for the finances of the Corporation.
Section 5.12. Vice Presidents . Each Vice President shall have such powers and perform such duties as the Board of Directors or any committee thereof may from time to time prescribe, or as the President may from time to time delegate to him. In the absence or disability of the President, any Vice President may perform the duties and exercise the powers of the President.
Section 5.13. Secretary . The Secretary shall attend all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose. The Secretary shall perform like duties for the Board of Directors when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors and shall perform such other duties as may be prescribed by the Board of Directors under whose supervision he shall be. He shall keep in safe custody the seal of the Corporation. He shall be under the supervision of the President. He shall perform such other duties and have such other authority and powers as the Board of Directors may from time to time prescribe or as the President may from time to time delegate.
Section 5.14. Assistant Secretaries . Each Assistant Secretary shall have such powers and perform such duties as the Board of Directors may from time to time prescribe or as the President may from time to time delegate to him.
Section 5.15. Treasurer . The Treasurer shall have the custody of all corporate funds and securities, shall keep full and accurate accounts of receipts and disbursements of the Corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, shall render to the Directors, at the regular meetings of the Board of Directors, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Corporation, and shall perform such other duties as the Board of Directors may prescribe or the President may from time to time delegate.
Section 5.16. Assistant Treasurers . Each Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time to time prescribe or as the President may from time to time delegate to him.
Section 5.17. Bonding . If required by the Board of Directors, all or certain of the officers shall give the Corporation a bond, in such form, in such sum, and with such surety or sureties as shall be satisfactory to the Board of Directors, for the faithful performance of the duties of their office and for the restoration to the Corporation, in case of their death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging to the Corporation.
CERTIFICATES OF SHARES
Section 6.1. Form of Certificates . The Corporation may, but is not required to, deliver to each stockholder a certificate or certificates, in such form as may be determined by the Board of Directors, representing shares to which the stockholder is entitled. Such certificates shall be consecutively numbered and shall be registered on the books and records the Corporation or its transfer agent as they are issued. Each certificate shall state on the face thereof the holder’s name, the number, class of shares, and the par value of such shares or a statement that such shares are without par value.
Section 6.2. Shares without Certificates . The Board of Directors may authorize the issuance of uncertificated shares of some or all of the shares of any or all of its classes or series. The issuance of uncertificated shares has no effect on existing certificates for shares until surrendered to the Corporation, or on the respective rights and obligations of the stockholders. Unless otherwise provided by the Nevada Revised Statutes, the rights and obligations of stockholders are identical whether or not their shares of stock are represented by certificates. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send the stockholder a written statement containing the information required on the certificates pursuant to Section 6.1 .
Section 6.3. Lost Certificates . The Board of Directors may direct that a new certificate be issued, or that uncertificated shares be issued, in place of any certificate theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost or destroyed. When authorizing such issue of a new certificate or uncertificated shares, the Board of Directors, in its discretion and as a condition precedent to the issuance thereof, may require the owner of such lost or destroyed certificate, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond, in such form, in such sum, and with such surety or sureties as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost or destroyed. When a certificate has been lost, apparently destroyed or wrongfully taken, and the holder of record fails to notify the Corporation within a reasonable time after he has notice of it, and the Corporation registers a transfer of the shares represented by the certificate before receiving such notification, the holder of record is precluded from making any claim against the Corporation for the transfer or a new certificate or uncertificated shares.
Section 6.4. Transfer of Shares . Shares of stock shall be transferable only on the books of the Corporation or its transfer agent by the holder thereof in person or by his duly authorized attorney. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation or the transfer agent of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
Section 6.5. Registered Stockholders . The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
Section 7.1. Dividends . Dividends upon the outstanding shares of the Corporation, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting. Dividends may be declared and paid in cash, in property, or in shares of the Corporation, subject to the provisions of the Nevada Revised Statutes and the Articles of Incorporation. The Board of Directors may fix in advance a record date for the purpose of determining stockholders entitled to receive payment of any dividend, such record date to be not more than sixty days prior to the payment date of such dividend, or the Board of Directors may close the stock transfer books for such purpose for a period of not more than sixty days prior to the payment date of such dividend. In the absence of any action by the Board of Directors, the date upon which the Board of Directors adopts the resolution declaring such dividend shall be the record date.
Section 7.2. Reserves . There may be created by resolution of the Board of Directors out of the surplus of the Corporation such reserve or reserves as the directors from time to time, in their discretion, think proper to provide for contingencies, or to equalize dividends, or to repair or maintain any property of the Corporation, or for such other purpose as the directors shall think beneficial to the Corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. Surplus of the Corporation to the extent so reserved shall not be available for the payment of dividends or other distributions by the Corporation.
Section 7.3. Telephone and Similar Meetings . Stockholders, directors and committee members may participate in and hold a meeting by means of conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
Section 7.4. Books and Records . The Corporation shall keep correct and complete books and records of account and minutes of the proceedings of its stockholders and Board of Directors, and shall keep at its registered office or principal place of business, or at the office of its transfer agent or registrar, a record of its stockholders, giving the names and addresses of all stockholders and the number and class of the shares held by each.
Section 7.5. Checks and Notes . All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
Section 7.6. Loans . No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section 7.7. Fiscal Year . The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board of Directors.
Section 7.8. Seal . The Corporation may have a seal, and such seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Any officer of the Corporation shall have authority to affix the seal to any document requiring it.
Section 7.9. Indemnification . The Corporation shall indemnify its directors to the fullest extent permitted by the Nevada Revised Statutes and may, if and to the extent authorized by the Board of Directors, so indemnify its officers and any other person whom it has the power to indemnify against liability, reasonable expense or other matter whatsoever.
Section 7.10. Insurance . The Corporation may at the discretion of the Board of Directors purchase and maintain insurance on behalf of any person who holds or who has held any position identified in Section 7.9 against any and all liability incurred by such person in any such position or arising out of his status as such.
Section 7.11. Resignation . Any director, officer or agent may resign by giving written notice to the President or the Secretary. Such resignation shall take effect at the time specified therein or immediately if no time is specified therein. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 7.12. Amendment of Bylaws . These Bylaws may be altered, amended or repealed at any meeting of the Board of Directors at which a quorum is present, by the affirmative vote of a majority of the Directors present at such meeting.
Section 7.13. Invalid Provisions . If any part of these Bylaws shall be held invalid or inoperative for any reason, the remaining parts, so far as possible and reasonable, shall be valid and operative.
Section 7.14. Relation to Articles of Incorporation . These Bylaws are subject to, and governed by, the Articles of Incorporation.
FINANCIAL ADVISORY AGREEMENT
This Financial Advisory Agreement (the “ Agreement ”) is dated as of March __, 2015, by and between The Vantage Group, Ltd., a Delaware corporation (the “ Consultant ”), and Basta Holdings, Inc., a Nevada corporation (the “ Company ”), and sets forth the terms whereby the Consultant will provide services as a financial advisory consultant to the Company.
The Company hereby engages and retains Consultant as a financial advisory consultant to perform the Services (as that term is hereinafter defined) and Consultant hereby accepts such appointment on the terms and conditions set forth herein.
Consultant shall be, and in all respects be deemed an independent contractor in this performance of its duties hereunder, any law of any jurisdiction to the contrary notwithstanding.
A. Consultant shall be solely responsible for making all payments to and on behalf of its employees, subcontractors, including those required by law.
B. Consultant shall not, by reason of this Agreement or the performance of the Services, be or be deemed to be, an employee, agent, partner, co-venturer or controlling person of the Company and Consultant shall have no power to enter into any agreement on behalf of or otherwise bind the Company. Without limiting the foregoing, Consultant shall not enter into any contract or commitment on behalf of the Company.
C. Subject to Section II.D hereof, Consultant shall not have or be deemed to have, fiduciary obligations or duties to the Company and shall be free to pursue, conduct and carry on for its own account (or for the account of others) such activities, employments, ventures, businesses and other pursuits as Consultant in its sole, absolute and unfettered discretion may elect.
D. Notwithstanding the above, no activity, employment, venture, business or other pursuit of Consultant during the term of this agreement shall conflict with Consultant’s obligations under this Agreement or be adverse to the Company’s interests during the term of this Agreement.
Consultant agrees to serve as a financial advisory consultant to the Company and to provide and/or perform the following, hereinafter collectively referred as the “ Services ”:
A. Complete an analysis of the Company’s business, structure, organization and development, with an emphasis on the possible up-listing of the Company’s common stock onto the Nasdaq Capital Market.
B. Assist the Company in its efforts to seek additional business relationships that will be of benefit to the Company.
C. Introduce the Company to potential media outlets, market professionals, investment relations professionals, attorneys, broker-dealers, mutual funds and other institutional investors.
D. Consultant shall devote such time and effort, as it deems commercially reasonable and adequate under the circumstances, to the affairs of the Company to render Services contemplated by this agreement. Consultant is not responsible for the performance of any services which may be rendered hereunder without the Company providing the necessary information in writing prior thereto. Consultant cannot guarantee results on behalf of the Company, but shall pursue all reasonable avenues available through its network of contacts. At such time as an interest is expressed by a third party in the Company’s needs, Consultant shall notify the Company and advise it as to the source of such interest and any terms and conditions of such interest. The acceptance and consumption of any transaction is subject to acceptance of the terms and conditions by the Company.
E. In conjunction with the Services, Consultant agrees to make itself available for telephone conferences with senior management of the Company during normal business hours, in order to advise management in corporate finance matters including, structuring in nature, extent and other parameters of any private placement or other financing offer(s) made to the Company.
Any travel or out-of-pocket expenses of Consultant in the rendering of the Services shall be reimbursed by the Company. This shall only apply to travel or out-of-pocket expenses that is requested by or approved in advance by the Company.
In consideration for the Services, the Company shall issue to Consultant an amount of Series C Convertible Preferred shares that shall be equal to an ownership interest in the Company of 9.99% on a fully diluted basis when converted into the Company’s common stock, par value $0.001 per share, for a total purchase price of $1,000. When issued, the Series C Convertible Preferred (and when converted, the Company’s common stock) shall be fully paid and non-assessable.
|VI.||REPRESENTATIONS, WARRANTIES AND COVENANTS|
A. The Company agrees, acknowledges and understands that there can be no assurances that Nasdaq will approve the Company’s listing application.
B. The Company acknowledges and understands that Consultant is not a broker-dealer and the Company may be required to pay additional underwriting fees in connection with any offerings, underwritings or financings to the appropriate underwriter and/or funding entity in addition to any fees paid to Consultant. The Company acknowledges and understands that Consultant is not a FINRA member firm and employs no registered representative(s) of a FINRA member firm.
C. In order to satisfy its obligations hereunder, the Company hereby agrees to amend its articles of incorporation to authorize the issuance of a class of preferred stock designated as Series C Convertible Preferred Stock in such number and voting rights to be determined by mutual agreement of the parties. The Company further agrees and acknowledges that the rights and preferences to be designated for its Series C Convertible Preferred Stock shall be superior to those of the Company’s Series A Preferred Stock, Series B Preferred Stock, the Company’s Common Stock and any other class or series of the Company’s stock issued in the eighteen (18) months from the date of this Agreement.
D. Consultant hereby represents that it has in place policies and procedures relating to, and addressing, with the commercially reasonable intent to ensure compliance with applicable securities laws, rules and regulations, including, but not limited to:
1. The use, release or other publication of forward-looking statements within the meaning of Section 27A of the Securities Act Section 21E of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”).
2. Disclosure requirements outlined in Section 17B of the Exchange Act regarding the required disclosure of the nature and terms of Consultant’s relationship with the Company in any and all communication(s) relating the Company, including, but not limited to: press releases, letters to investors and telephone or other personal communication(s) with potential or current investors.
E. Consultant further acknowledges that by the very nature of its relationship with the Company it will from time to time have knowledge of or access to material non-public information (as such term is defined by the Exchange Act) Consultant hereby agrees to covenants that:
1. Consultant will not make any purchases or sales in the stock of the Company based on such information.
2. Consultant will utilize its commercially reasonable efforts to safeguard and prevent the discrimination of such information to third parties unless authorized in writing by the Company to do so as may be necessary in the performance of its Services under this Agreement.
F. Execution . The execution, delivery and performance of this Agreement in the time and manner herein specified, will not conflict with, result in a breach of, or constitute a default under any existing agreement, indenture, or other instrument to which either the Company or Consultant is a party or by which either entity may be bound or affected.
G . Non-Circumvention . The Company hereby irrevocably agrees not to circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement, to avoid payment of fees in any transaction with any corporation, partnership or individual introduced by Consultant to the Company, in connection with any project, any loans, or collateral or other transaction involving any products, transfers or services, or addition, renewal extension, rollover, amendment, renegotiations, new contracts, parallel contracts/agreements, or third party assignments thereof.
H. Timely Apprisals . The Company shall keep Consultant up to date and apprised of all business, market and legal developments related to the Company and its operations and management.
1. Accordingly, the Company shall provide Consultant with copies of all amendments, revisions and changes to its business and marketing plans, bylaws, articles of incorporation, private placement memoranda, key contracts, employment and consulting agreements and other operational agreements.
2. The Company shall promptly notify Consultant of all new contracts, agreements, joint ventures or filing with any state agency, and shall provide all related documents, including without limitation, the SEC, NASD or any state agency, and shall provide all related documents, including copies of the exact documents filed, to Consultant, including without limitation, all annual reports, quarterly reports and notices of change of events, and registration statements filed with the SEC and any state agency, directly to Consultant.
3. The Company shall also provide directly to Consultant current financial statements, including balance sheets, income statements, cash flows and all other documents provided or generated by the Company in the normal course of its business and requested by Consultant from time to time.
4. Until termination of the engagement contemplated by this Agreement, the Company shall notify Consultant promptly of the occurrence of any event, which might materially affect the condition (financial or otherwise), or prospects of the Company.
5. Consultant shall keep all documents and information supplied to it hereunder confidential as described in the section below titled “CONFIDENTIAL DATA”.
I. Corporate Authority . Both the Company and Consultant have full legal authority to enter into this Agreement and to perform the same in the time and manner contemplated. Furthermore, the individuals whose signatures appear below are authorized to sign this Agreement on behalf of their respective corporations.
|VI.||TERM AND TERMINATION|
The term of this Agreement shall be one year. This Agreement will automatically renew for a period of one year unless either party gives written notice of its intent not to renew the Agreement at least sixty (60) days prior to the expiration of the current term.
A. Consultant shall not divulge to others, any trade secret or confidential information, knowledge, or data concerning or pertaining to the business and affairs of the Company, obtained by Consultant as a result of its engagement hereunder, unless authorized, in writing by the Company.
B. The Company shall not divulge to others, any trade secret or confidential information, knowledge, or data concerning or pertaining to the business and affairs of Consultant, obtained as a result of its engagement hereunder, unless authorized, in writing, by Consultant.
C. Consultant shall not be required in the performance of its duties to divulge to the Company, or any officer, director, agent or employee of the Company, any secret or confidential information, knowledge, or data concerning any other person, firm or entity (including, but not limited to, any such person, firm or entity which may be a competitor or potential competitor of the Company) which Consultant may have or be able to obtain other than as a result of the relationship established by this Agreement.
|VIII.||OTHER MATERIAL TERMS AND CONDITIONS|
A. Indemnification . The Company agrees to indemnify, defend, and hold Consultant harmless from any and all actions, causes of action, claims, demands, cost, liabilities, expenses and damages (including reasonable attorneys' fees) arising out of, or in connection with any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative, legislative, investigative or other (including any appeal relating thereto) whether formal or informal and whether made or brought by or in the right of the Company or otherwise, in which Consultant is, was or at any time becomes a party or witness, or is threatened to be made a party or witness in relation to any services provided in good faith by Consultant under this Agreement.
B. Survival . Neither termination nor completion of the provision of the Services shall affect the provisions of this Agreement and the indemnification provisions above which are incorporated herein, which shall remain operative and in full force and effect.
C. Additional Instruments . Each of the parties shall from time to time, at the request of others, execute, acknowledge and deliver to the other party any and all further instruments that may be reasonably required to give full effect and force to the provisions of this Agreement.
D. Entire Agreement . Each of the parties hereby covenants that this Agreement, together with the exhibits attached hereto as earlier referenced, is intended to and does contain and embody herein all of the understandings and agreements, both written or oral of the parties hereby with respect to the subject matter of this Agreement, and that there exists no oral agreement or understanding or expressed or implied liability whereby the absolute, final unconditional character and nature of this Agreement shall be in any way invalidated, empowered or affected. There are no representations, warranties or covenants other than those set forth herein.
E. Governing Law . This Agreement shall be deemed to be made in, governed by and construed in all respects in accordance with the laws of the State of New York irrespective of the country or place of domicile or residence of either party and without regard to conflicts of laws principles. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
F. Assignments . The benefits of this Agreement shall insure to the respective successors and assignees of the parties hereto and the indemnified parties hereunder and their successors and assigns and representative, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their respective successors and assigns, provided that the rights and obligations of the Company under the Agreement may not be assigned or delegated without the prior written consent of Consultant and any such purported assignments shall be null and void. Notwithstanding the foregoing, Consultant may assign any portion of its Compensation as outlined herein to its employees, affiliates, sub-contractors or subsidiaries in its sole discretion.
G. Counterparts . This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed on original constitute one and the same agreement. Facsimile copies with signatures shall be given the same legal effects as an original.
H. Addresses of Parties . Each party shall at all times keep the other informed of its principal place of business if different from that stated herein and shall promptly notify the other of any change, giving the address of the new place of business or residence.
I. Modification and Waiver . A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of any party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature or of any other nature.
If this letter accurately sets forth our understanding, kindly execute the enclosed copy of this letter and return it to the undersigned.
|Very truly yours,|
|BASTA HOLDINGS INC.|
ACCEPTED AND AGREED:
THE VANTAGE GROUP, LTD.