EXHIBIT 2.1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 22, 2019
Commission file number: 1-03319
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Mineral Mountain Mining & Milling Company |
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(Exact name of registrant as specified in its charter) |
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Idaho |
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82-0144710 |
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(State or Other Jurisdiction of
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(I.R.S. Employer
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13 Bow Circle, Suite 170. Hilton Head, SC |
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29928 |
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(Address of Registrant’s Offices) |
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(Zip Code) |
Registrant’s Telephone Number, including area code: (917) 587-8153
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of 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(b) under the Exchange Act (17 CFR 240.14a-12(b))
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company x
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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Item 1.01 Entry into a Material Definitive Agreement.
On March 22, 2019, Mineral Mountain Mining & Milling Company (“Mineral Mountain” or “Company”) entered into two Share Exchange Agreements (collectively the “SEA’s”), one with PR345, Inc. (“PR345”), a newly organized Texas corporation, and one with NuAxess 2, Inc. (“NuAxess”), a newly organized Delaware corporation. in which the Company agreed to acquire the all of the capital stock of P345, Inc. and NuAxess 2, Inc. in exchange of the issuance of shares of Series C and D Preferred Stock, par value $0.10 per share, to the shareholders of PR345 and NuAxess. The Share Exchange Agreements are filed herewith as Exhibits 2.1 and 2.2, respectively.
The entry into the two SEA’s with PR345 and NuAxess was authorized and approved by resolutions approved by the Company’s Board of Directors on March 17, 2019 in furtherance of the Company’s plan, as disclosed in its registration statement declared effective by the SEC on March 8, 2019, Registration No. 333-227839, to diversify its business beyond its historic mining operations (the “MMMM Mining Operations”).
PR345 is a minority-owned business enterprise that was formed to provide staffing services to a variety of industries as well as back office services including accounting, payroll and a full complement of HR benefits in its role as a Professional Employer Organization. NuAxess serves as a full service financial, employee benefit and insurance consulting company providing health plans and comprehensive benefits to employees of small and medium size businesses.
Upon the closing of the SEA’s (the “Closing”) PR345 and NuAxess will become wholly-owned subsidiaries of Mineral Mountain in exchange for the issuance of 400,000 shares of newly designated Series C Convertible Preferred Stock (the “Series C Shares”), with 200 Series C Shares issuable to Sunlight Financial, LLC, a Texas limited liability company and the control shareholder of PR345, owning 75% of its capital stock, and 200,000 Series C Shares issuable to IDH Holdings 2, Inc., a Delaware corporation and the control shareholder of NuAxess, owning 75% of the capital stock its capital stock.
At the Closing, the minority shareholders of PR345 and NuAxess will each be issued 200,000 shares of newly designated Series D Convertible Preferred Stock (“the Series D Shares”), which shares shall have a Beneficial Ownership Limitation. The Series C and Series D Preferred Stock is convertible into 92.5% of the outstanding common stock as of the date of Closing. Reference is made to the disclosure under Item 3.02, “Unregistered Sales of Equity Securities” below. The outstanding common stock holders of the Company at the Closing shall retain 7.5% of the issued and outstanding common stock, par value $0.001 (the “Common Stock”), which Common Stock will be subject to dilution upon the conversion on existing convertible notes and subsequently issued convertible note issued for the purpose of funding the MMMM Mining Operations, subject to certain anti-dilution protections as set forth in the SEA’s.
In addition, at the Closing the Company shall place in escrow the shares of Series B Super Voting Preferred Stock issued in the name of its Chairman, Sheldon Karasik, to be released to IDH Holdings 2 or its designee at or after Closing, which shares were issued on March 21, 2019, pursuant to resolutions of the Board of Directors dated November 5, 2018. The Certificate of Designation for the Series B Super Voting Preferred Stock is attached as Exhibit 99.1 hereto.
The Closing of both SEA’s is subject to the satisfaction at or prior to the Closing (no later than April 9, 2019) Conditions to Closing contained in Section 1.03. The Company references the SEA’s filed herewith as Exhibits 2.1 and 2.2 for a complete description of the Conditions of Closing.
The Company currently owns and controls two wholly-owned subsidiaries, Nomadic Gold Mines, Inc. and Lander Gold Mines, Inc. (collectively the “MMMM Mining Subsidiaries”), each of which has exclusive rights to and/or owns mining claims in the States of Alaska and Wyoming, respectively. Since its inception, the Company has not generated significant revenues and during the past two fiscal years ended September 30, 2017 and 2018, the Company generated no operational revenues and had limited liquid assets. The Company believes that in order for it to be successful in its mining operations and in order to diversify its business and generate revenue from its mining and other business operations, it is in its best interests and in the interests of its shareholders to enter into separate share exchange agreements with NuAxess and PR345.
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The Company has determined to enter into the NuAxess SEA because of the reasonably based projected growth potential and new business opportunities afforded by NuAxess’ business plan which, in substance, provides that NuAxess shall: (i) serve as a full service financial, employee benefit and insurance consulting company offering, either directly or indirectly, through proven third parties, innovative ways to provide employees of client companies with affordable and manageable health plans and comprehensive benefits, based upon a new system being developed throughout the country for the rapidly expanding market of small and medium-sized businesses (SMBs) which are experiencing significant problems with their existing programs, to the extent that they even provide programs because of their costs and complexities; (ii) creating an international professional employer association (IPEA) headquartered in San Juan, Puerto Rico, that will sponsor and provide professional outreach programs offering health insurance, healthcare and financial education to its PEO and financial services members globally; and (iii) additionally, the IPEA will offer these and other services to leading rural hospital providers via a proprietary program called ‘Community Health Exchanges’, which will work directly with SMB employers in rural communities providing access to private insured health plans with contracted medical services through the rural hospitals.
The Company has determined to enter into the PR345 SEA because of the reasonably based projected growth potential and new business opportunities afforded by PR345’s business plan which, in substance, provides that PR345, a designated minority-owned business enterprise consulting firm, shall: (i) provide specialized staffing services for a variety of professional industries including, but not limited to, medical, education, financial services, technology and hospitality, among others; (ii) provide specific back office services including accounting, payroll, and a full complement of Human Resource (HR) benefits; and (iii) either directly or indirectly through third-party relationships and strategic affiliations, acts as a Professional Employer Organization (PEO).
The SEA’s provide that PR345 and/or NuAxess shall provide or otherwise secure for the benefit of the MMMM Mining Operations, which shall be operated by the MMMM Mining Subsidiaries, 75% of which will be owned by a private entity and 25% of which will be retained by the Company after the Closing. The new privately- owned company, the owner of 75% of the MMMM Mining Subsidiaries, will assume responsibility for 100% of the liabilities of the MMMM Mining Subsidiaries.
The Closing of both SEA’s is subject to the satisfaction at or prior to the Closing (no later than April 9, 2019) of the Conditions to Closing set forth in Section 1.03 of the respective SEA’s. Those Conditions of Closing include, but are not limited to: (i) filing of Certificates of Designation for the Series B Super Voting Preferred Stock and the Series C and Series D Preferred Stock; (ii) Felix Keller, a member of the Board since October 23, 2017, shall resign as a member of the Board of Directors of the Company; and (iii) the Board of Directors of the Company shall appoint Carl Dorvil, Pat Dileo and Derrick Chambers (an independent member) to the Board, joining Sheldon Karasik and Michael Miller (subject to the new Board of Directors’ approval), on the newly constituted 4 or 5 person Board of Directors, as the case may be; (iv) NuAxess and/or PR345 shall fund or cause to be funded $100,000 into an account designated by the management of the MMMM Mining Subsidiaries as working capital for the operations of those subsidiaries; and (v) the parties shall amend and/or modify the Equity Financing Agreement with Crown Bridge Partners, LLC (“CBP”), entered on or about October 1, 2018, to provide that 20% of all proceeds from the Equity financing Agreement and any subsequent financing or offering received by the Company, will be paid and deposited into an account designated by the MMMM Mining Subsidiaries for the sole benefit and use in the operations of the operations of the MMMM Mining Subsidiaries, for use primarily as working capital for in furtherance of their mining operations.
The parties also agreed that: (i) within 30 days of the Closing, NuAxess, PR345, MMMM and their designated representatives or third-party investors selected by NuAxess and/or PR345 and approved by MMMM, which approval will not be unreasonably withheld, shall, assuming funding is received, make an additional payment of $400,000 to the MMMM Mining Subsidiaries and, in the event such anticipated financing is not received, the Company will be obligated to deliver to the MMMM Mining Subsidiaries the first $400,000 of debt or equity raised by the Company within 5 business days of receipt of such new financing.; and (ii) the Company and the management of the MMMM Mining Subsidiaries consisting of Sheldon Karasik and other individuals designated by Sheldon Karasik (the “Mining Management”), shall enter into an Option Agreement, in a form mutually agreed prior to the Closing (the “MBO Agreement”) pursuant to which the Mining Management shall have the exclusive right to exercise at any time the purchase of 75% of the shares and any other equity interests of the MMMM Mining Subsidiaries by a Mining Management or an entity created and controlled by the Mining Management, in consideration for a payment of $10 to the Company and assumption by the Mining Management of 100% of the liabilities of the MMMM Mining Subsidiaries. The MBO Agreement shall also provide that the Management Group shall have full and exclusive control over the management of the daily operations of the MMMM Mining Subsidiaries prior to the exercise of the Option and the closing of the MDO Agreement.
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In addition to the Conditions to Closing contained in Section 1.03, Article II of the SEA’s contain standard representations and warranties of NuAxess and PR345 and their respective shareholders (see Article II in Exhibits 2.1 and 2.2). Article III of the SEA’s contain standard representations and warranties of the Company (see Article III in Exhibits 2.1 and 2.2). Among the Covenants in Article IV in the SEA’s is Section 4.08 which provides the common stock shareholders with anti-dilution protection in relation to the newly issued Series C and Series D Convertible Preferred Shares (see Section 4.08 in Exhibits 2.1 and 2.2).
The foregoing is a summary of the SEA’s and reference is made to the express terms and conditions of the SEA’s, attached as Exhibits 2.1 and 2.2 hereto.
Item 3.02 Unregistered Sales of Equity Securities.
The Company’s authorized capital stock consists of 10,000,000 shares of preferred stock, par value $.10 per share. On March 21, 2019, the Company filed with the Secretary of State of the State of Idaho the Certificate of Designation for Series B Super Voting Preferred Stock, 1 share of which was authorized and was issued to Sheldon Karasik, the Company’s CEO and Chairman of its Board of Directors Board of Directors authorized the issuance of 1 share of Series B Super Voting Preferred Stock to Sheldon Karasik, the Company’s CEO and Chairman of its Board of Directors. Reference is made to Exhibit 99.1, the Certificate of Designation of the Series B Super Voting Preferred Stock, for the Preferences, Rights, Limitations, Qualifications and Restrictions of the Series B Super Voting Preferred Stock, which was filed as Exhibit 99.1 to the Company’s Form 8-K filed on March 21, 2019 On March 27, 2019, the Board of Directors authorized the issuance of: (i) 400,000 shares of newly designated Series C Convertible Preferred Stock to IDH Holdings 2 and Sunlight Financial, the 75% owners of NuAxess and PR345, respectively, with 200,000 shares of Series C Preferred Stock issuable to each; and (ii) 400,000 shares of newly designated Series D Convertible Preferred Stock to Draper, Inc., a Nevada corporation, and Carriage House, Inc., a Delaware corporation, with 200,000 shares issuable to each, in exchange for their shares in NuAxess and PR345, respectively. The Company contemplates the filing with the Secretary of State of Idaho of the Certificates of Designation for the Series C and Series D Preferred Stock prior to the Closing, which filings will constitute an amendment to the Company’s Articles of Incorporation. (see Exhibits 99.2 and 99.3 for the terms of the Series C Convertible Preferred Stock and Series D Convertible Preferred Stock).
The shareholders of NuAxess own 100% of the issued and outstanding capital stock of NuAxess (the NuAxess Shares”), which Shares are owned 75% by IDH Holdings 2, Inc., a Delaware corporation with an address at 122 Dickenson Avenue, Toms River, New Jersey 08753 (“IDH”) and 12.5% are owed by each of Draper, Inc., a Nevada corporation with offices located at 35 Crest Loop, Staten Island, New York 10312 (“Draper”) and Carriage House Inc., a Nevada corporation with offices located at 6953 Amboy Road, Staten Island, New York 10309 (“Carriage House”). Pat Dileo is President of NuAxess and he is the principal of IDH.
The shareholders of PR345 own 100% of the issued and outstanding capital stock of PR345 (the PR345 Shares”), which Shares are owned 75% by Sunlight Financial, LLC, a Texas limited liability company (Sunlight”), 12.5% are owned by each of Draper and Carriage House. Joshua Rebecca and Carl Dorvil are the principals of PR345.
The disclosures set forth in Item 1.01 above are incorporated in this Item 3.02.
Item 3.03 Material Modification to Rights of Security Holders.
The disclosures set forth in Item 1.01 above are incorporated in this Item 3.03.
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On Closing: (i) Mr. Felix Keller (a member of the Board since October 23, 2017) shall resign as a member of the Board of Directors of the Company; and (ii) the Board of Directors of the Company shall appoint Carl Dorvil, Pat Dileo and Derrick Chambers to the Board, joining Sheldon Karasik and Michael Miller (subject to the new Board of Directors’ approval), on the newly constituted 4 or 5 person Board of Directors, as the case may be. Mr. Derrick Chambers and Mr. Michael Miller shall serve as independent directors.
Carl Dorvil, age 35, Director : Mr. Dorvil served as the Chief Executive Officer and Chairman of the Board of GEX Management, Inc., OTCQB: GXXM, a reporting public company, from 2004 until October 15, 2018. Carl Dorvil founded Group Excellence, LLC, a tutoring and mentoring company, in 2004. The company quickly grew to more than six hundred employees. In 2011, Group Excellence was on Inc. 500’s annual list of the 500 fastest growing private companies in the United States.In response to rapid growthh, Mr. Dorvil developed GEX Management to facilitate the back-office functions of his company, providing Group Excellence with human resources, IT, accounting/bookkeeping, In 2016 GEX Management revised its business model to provide staffing and back-office services to a wide variety of industries in order to expand the Company’s footprint, thereby building on the previous 12-year history of exceptional client service. On February 23, 2018, the US Secretary of Commerce, Wilbur Ross, mentioned at the ”African American Leaders in the White House: Education, Business and Policy” that Dorvil was ”the youngest African American CEO ever to take a company public in U.S. history.”
Mr. Dorvil has also served as a managing partner at P413 Management, LLC, a strategy and consulting firm that focuses on non-profit entities and consulting related to the expansion of corporate community outreach programs, from 2011 to present, and serves as Managing Partner at Vicar Capital Partners, LLC, a licensed capital advisory firm, from 2013 to present.
Mr. Dorvil graduated from Southern Methodist University (“SMU”) in 2005 with three majors -- Public Policy, Economics, and Psychology, all with Distinction. Mr. Dorvil continued his education post undergraduate studies at SMU and received his MBA from the Cox School of Business. In 2004, he founded Group Excellence, a mentoring and tutoring company, out of his dorm room at SMU. The company started with a $20,000 grant from Texas Instrument Foundation. Since its inception, Group Excellence provided over 800,000 hours of tutoring to students around the country and created over 2,000 jobs. In 2011, Mr. Dorvil sold the company to a Dallas-based investor group. Two years later, he bought it back for 10% of the original sale price. After stabilizing the business, Mr. Dorvil converted it into a nonprofit.
In 2010, Mr. Dorvil received the Minority Business Leader Award from the Dallas Business Journal (“DBJ”) and Group Excellence was included in the “Top 100 on SMU’s Dallas 100 Fastest-Growing Businesses” list. In 2011, Mr. Dorvil was the youngest-ever honoree on the DBJ’s 40 Under Forty, and Group Excellence was the fifth on the Inc. 500 list of fastest-growing companies in the United States. Mr. Dorvil is a regular contributor to Forbes, with his most recent article being “Challenges and Opportunities When Doing Business with the Government”.
Pat Dileo, Director: Pat Dileo has over 25 years of proven entrepreneurial, financial and management experience in both guiding his own companies and providing strategic advice and guidance to the CEOs of various public and private corporations. Since 2018, Mr. Dileo has served as President of NuAxess 2, Inc., a Delaware corporation that uses its reference-based medical provider pricing method for its proprietary Health Benefit Plans (HBP) and reinsurance risk assessment for small to midsize employer groups and their employees.
Mr. Dileo was also a founder of Consumer Care Solutions, Inc., a company he created in August 2004, as Essential Planning Group, and whose former chairman was the late Gerald (‘Jerry’) Tsai, Jr., a world-renowned Wall Street fund manager and financier who pioneered the use of performance funds in money management during the 1950s and 1960s, and later turned American Can Company into the financial services giant Primerica for Citigroup.
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Prior to Consumer Care Solutions, Inc. Mr. Dileo was part of the management team active in establishing a patented technology for making municipal biosolids a recyclable fertilizer material via U.S. E.P.A. and was an owner and secretary of the private company that purchased a fertilizer company in Arkansas and acquired several long-term municipal biosolid contracts, including New York City DEP and Yonkers, NY. This company was subsequently sold to the largest national public company that ran municipal waste facilities throughout America.
From 1995 to 1998, Mr. Dileo was a vice president and director of Compost America Holding Company, Inc., a public reporting company traded on OTCBB: CAHC, a municipal solid waste and organic recycling company
Derrick Chambers , age 41, Director: F rom 2016 to the present, Derrick Chambers has served as Director of the University of Florida Alumni Association, responsible for fundraising and donations for the University’s Athletic Department. From 2011 to the present, Mr. Chambers has been the owner and founder of DCMG LLC, a New York based company engaged in independent consulting specializing in financial services in the areas of high net worth, professional sports and education. Mr. Chambers was a captain of the University of Florida NCAA Division 1 football team for two years under renowned Coach Steve Spurrier and played in the NFL for three years with the Carolina Panthers and Jacksonville Jaguars. Following his NFL career, he studied University of Oxford in England, studying politics, philosophy, and history. He was a member of the Oxford Rugby team at St. Peter’s College. Thereafter, Mr. Chambers studies at Princeton Seminary where he served as a Princeton Academic-Athletic fellow at Princeton. The academic-athletic fellows are made up of faculty and administrators who mentor student athletes at Princeton.
As a member of the National Football League Players Association (NFLPA), Derrick is focused on financial literacy and advisory services for professional athletes and entertainers. Derrick is a Board member of the Youth Leadership foundation of Washington, D.C.
The disclosures set forth in Item 1.01 above are incorporated in this Item 5.02.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The disclosures set forth in Item 1.01 above are incorporated in this Item 5.03.
Item 8.01 Other Events.
The disclosures set forth in Item 1.01 above are incorporated in this Item 8.01.
Item 9.01 Financial Statements and Exhibits.
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Exhibit No. |
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Description |
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Certificate of Designation of Series C Preferred Stock, filed herewith |
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Certificate of Designation of Series D Preferred Shares, filed herewith |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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Mineral Mountain Mining & Milling Company |
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Dated: March 27, 2019 |
By: |
/s/ Sheldon Karasik |
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Sheldon Karasik |
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Chief Executive Officer (Principal Executive Officer) |
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EXHIBIT 2.1
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EXHIBIT 2.2
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EXHIBIT 99.1
CERTIFICATE OF DESIGNATION
of the
PREFERENCES, RIGHTS, LIMITATIONS, QUALIFICATIONS AND RESTRICTIONS
of the
SERIES C CONVERTIBLE PREFERRED STOCK
of
MINERAL MOUNTAIN MINING & MILLING COMPANY
Mineral Mountain Mining & Milling Company, an Idaho corporation (the “Company”), hereby certifies that, pursuant to the authority conferred upon the Board of Directors of the Company (the “Board”) by its Amended Articles of Incorporation, on March 27, 2019, the Board duly adopted the following resolution providing for the authorization of shares of the Company’s Series C Convertible Preferred Stock (the “Series C Convertible Preferred Stock” or “Series C Preferred Stock”) pursuant to the terms of this Preferences, Rights, Limitations, Qualifications And Restrictions Of The Series C Convertible Preferred Stock the “Series C Certificate of Designations:”
NOW THEREFORE, BE IT RESOLVED, that pursuant to the authority granted to the Board of Directors in accordance with the provisions of the Certificate of Incorporation, as Amended, the Board of Directors hereby authorizes the adoption of this Series C Convertible Preferred Stock Certificate of Designation:
1. Designation and Amount; Designated Holder . The Company has authorized ten million (10,000,000) shares of Preferred Stock, $0.10 par value per share, of which there is one share of Super Voting Class B Preferred Stock issued and outstanding; and, pursuant to this Series C Certificate of Designations, the Company hereby authorizes four hundred thousand (400,000) shares Series C Convertible Preferred Stock, with the rights and preferences set forth below. Only two (2) entities, IDH Holdings 2, Inc., a Delaware corporation (“IDH” and Sunlight Financial, LLC, a Texas limited liability company (“Sunlight”) (sometimes referred to hereinafter, individually, as a “Series C Holder” and collectively, as the “Series C Holders”) are entitled to be initially designated as the owners of the Series C Convertible Preferred Stock, of which two hundred thousand (200,000) shares of Series C Preferred Stock shall be issued to each of IDH and Sunlight. Any transfer of the Series C Preferred Stock to a different Holder must be approved in advance by the Company; provided, however, each Series C Holder shall have the right to transfer the Series C Preferred Stock, or any portion thereof, to any affiliate of, or nominee or shareholder of such Series C Holder, without the approval of the Company.
2. Rank . The Series C Convertible Preferred Stock shall rank: (i) senior to all of the Common Stock, par value $0.001 per share, of the Company (“Common Stock”) and to all other classes or series of capital stock of the Company currently outstanding (collectively, the “Junior Securities”); and (ii) pari passu to all series of preferred stock outstanding, including the Series B Super Voting Preferred Stock or preferred stock issuable pursuant to the transactions related to the issuance of the Series C Preferred Stock, specifically including shares of Series D Convertible Preferred Stock (collectively, the “Senior Securities”).
3. No Maturity, Sinking Fund, Mandatory Redemption . The Series C Preferred Stock has no stated maturity and will not be subject to any sinking fund or mandatory redemption and will remain outstanding indefinitely unless the Holders decide to convert the shares of Series C Preferred Stock as provided in this Certificate of Designation.
4. Liquidation Preference .
(a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of Series C Preferred Stock will be entitled to be paid out of the assets the Company has legally available for distribution to its shareholders on the same basis and pari passu with any shares of Preferred Stock, whether issued and outstanding at the date of this Certificate of Designation or any subsequently authorized and issued Preferred Stock (sometimes referred to collectively, as the “Senor Securities”). The preferential rights of the holders of the Senior Securities will be paid out prior to all Junior Securities with respect to the distribution of assets upon liquidation, dissolution or winding up, a liquidation preference plus an amount equal to any accumulated and unpaid dividends to, but not including, the date of payment, before any distribution of assets is made to holders of Common Stock or any other class or series of Junior Securities or other capital stock of the Company that it may issue that ranks junior to the Series C Preferred Stock as to liquidation rights. The liquidation preference shall be proportionately adjusted in the event of a stock split, stock combination or similar event so that the aggregate liquidation preference allocable to all outstanding shares of Series C Preferred Stock and other Senor Securities immediately prior to such event is the same immediately after giving effect to such event.
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(b) In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Company are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series C Preferred Stock and the corresponding amounts payable on all shares of other classes or series of capital stock of the Company that it may issue ranking on a parity with the Series C Preferred Stock in the distribution of assets, then the holders of the Series C Preferred Stock and all other such classes or series of capital stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
(c) The Series C Holders will be entitled to written notice of any such liquidation, dissolution or winding up no fewer than thirty (30) days and no more than sixty (60) days prior to the payment date. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series C Preferred Stock will have no right or claim to any of the remaining assets of the Company. The consolidation or merger of the Company with or into any other corporation, trust or entity or of any other entity with or into the Company, or the sale, lease, transfer or conveyance of all or substantially all of the property or business the Company, shall not be deemed a liquidation, dissolution or winding up of the Company.
5. Conversion Rights .
(a) The shares of Series C Preferred Stock or any portion thereof then issued and outstanding, at any time and from time to time, may be converted into a number of shares of fully-paid, nonassessable shares of the Company’s Common Stock equal to a total of sixty-seven point five (67.5%) percent of the Company’s outstanding shares of Common Stock on the Date of Closing on a fully-diluted basis (the “Fully-Diluted Common Stock”). The 67.5% conversion shall be adjusted to include all shares of Common Stock underlying the Company’s existing convertible debt or other convertible securities issuable by the Company (collectively, the “Convertible Securities”), which Convertible Securities are utilized or to be utilized to fund the Company’s mining operations (the “MMMM Mining Operations”) and shall be regardless of any issuance of Common Stock or other Convertible Securities following the execution and delivery of this Certificate of Designation and the issuance of the shares of Series C Preferred Stock, as such Common Stock exists on the date of issuance of the Series C Preferred Stock, including the shares of Series D Preferred Stock which is equal to a total of twenty-five (25%) percent of the Company’s outstanding shares of Common Stock on the Date of Closing on a fully-diluted basis. The number of shares of Common Stock to be issued upon each conversion of the Series C Preferred Stock (the “Conversion Shares”) shall be determined in accordance with the provisions of Section (5) below, on the date specified in the notice of conversion, in the form Notice of Conversion delivered to the Company by the Series C Holder; provided that the Notice of Conversion is submitted by facsimile or email (or by other means resulting in, or reasonably expected to result in, notice) to the Borrower before 4:00 p.m., New York, New York time on such conversion date (the “Conversion Date”).
(b) The Company covenants that during the period the Conversion Rights exist, the Company will reserve from its authorized and unissued Common Stock a sufficient number of shares, free from preemptive rights, to provide for the issuance of a number of Conversion Shares equal to the number of shares of Common Stock into which the Series C Preferred Stock is convertible, as set forth in Section 5(a) above, subject to the Anti-Dilution Rights and Limitations set forth in Section 6 below.
(c) The shares of Series C Preferred Stock may be converted by each Series C Holder in whole or in part, on any trading day, at any time from time to time after the issuance date, by submitting to the Company a Notice of Conversion (by facsimile, e-mail or other reasonable means of communication dispatched on the Conversion Date prior to 4:00 p.m., New York, New York time) into a number of shares of the Company’s Common Stock equal to thirty-three point seven five (33.75%) percent, subject to the Anti-Dilutions Rights set forth in Section 6 below. Any Notice of Conversion submitted after 4:00 p.m., New York, New York time, shall be deemed to have been delivered and received on the next trading day. Notwithstanding anything to the contrary set forth herein, upon conversion of the Series C Preferred Stock, in whole or in part, in accordance with the terms hereof, the Series C Holders shall physically surrender the shares of Series C Preferred Stock to the Company, which shall return to the respective Series C Holders a new certificate evidencing the number of shares of Series C Preferred Stock that remain unconverted.
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(d) Upon receipt by the Company from the Holder of a facsimile transmission or e-mail (or other reasonable means of communication) of a Notice of Conversion meeting the requirements for conversion as provided herein, the Company shall issue and deliver or cause to be issued and delivered to or upon the order of the Holders certificates for the Conversion Shares (or cause the electronic delivery of the Conversion Shares) within three (3) trading days after such receipt of the Notice of Conversion.
6. Anti-Dilution Rights and Limitations . The Company has determined that the Series C Holders, the Series D Holders and the Common Stock Holders shall have the following anti-dilution protection (the “Anti-Dilution Rights and Limitations”), in the event any funds or proceeds received under an offering pursuant to the pending Equity Financing Agreement (that is the subject to the effective Registration Statement, Registration No. 333-227839), any other financing facility or any other transaction. The Company hereby agrees to grant to the Common Stock Holders of record on the Closing Date and the Series C and Series D Holders, and their assigns, successors and purchasers, the following irrevocable Anti-Dilution Rights and Limitations:
(a) In the event any funds or proceeds received under an offering pursuant to the Equity Financing Agreement subject to the above-referenced Registration Statement, including any amendments thereto, after the Closing Date, the Common Stock Holders shall be diluted at the same ratio as the Series C Holders and other holders of the Company’s Preferred Stock (collectively the “Preferred Stock Holders”) such that the aforesaid Common Stock Holders shall maintain a percentage interest of 7.5% of all outstanding capital stock of the Company immediately prior to such Offering shall equal their percentage interest of the outstanding capital stock of Company after such subsequent Offering (after giving effect to the conversion of any convertible securities issued pursuant to the Equity Financing Agreement).
(b) In the event of any new business, funds or proceeds acquired or received under any other financing facility, including but not limited to convertible promissory notes (other than convertible notes issued to fund the MMMM Mining Operations), convertible preferred stock, common or preferred stock options or warrants, and mergers or acquisitions, the Common Stock Holders shall be diluted at the same ratio as the Preferred Stock Holders such that the Common Stock Holders shall maintain a percentage interest of 7.5% of all outstanding capital stock of the Company immediately prior to such transaction (after giving effect to the conversion of any convertible securities issued in the subsequent financing); provided, however, that the Anti-Dilution Rights and Limitations applicable to the Common Stock Holders shall not apply relative to any shares of Common Stock underlying any convertible notes issued and outstanding as of the Closing or issued subsequent to the Closing, by or for the benefit of MMMM to fund the MMMM Mining Operations.
(c) Should the Company sell additional shares of restricted Common Stock or Preferred Stock in a private placement or a public offering, shareholders of the Company’s Common Stock shall be diluted at the same ratio as all Preferred Stock Holders such that the Common Stock Holders shall maintain a percentage interest of the outstanding capital stock of 7.5% of Company immediately prior to such private placement. Notwithstanding the foregoing, in the event that such sales of additional shares of restricted Common Stock or Preferred Stock in a private placement or a public offering for the sole purpose of funding the MMMM Mining Operations, then the Anti-Dilution Rights and Limitations provisions of this Paragraph 6 applicable to the shareholders of the Company’s Common Stock at the Closing shall not apply and any dilution resulting from such issuances and sales of restricted Common Stock or Preferred Stock in a private placement or a public offering for the benefit of the MMMM Mining Operations shall dilute the 7.5% equity interest of shareholders of the Company’s Common Stock at the Closing and not the equity interest of the holders of the Preferred Stock.
(d) Notwithstanding the foregoing, in the event that the Company issues convertible notes or other securities (other than pursuant to Equity Line Transactions and the $100,000 deliverable within five (5) days of Closing) for the purpose of funding the MMMM Mining Operations, as well as all existing convertible notes at the date of the Closing, shall only dilute the 7.5 equity interest of the Shareholders of the Company’s Common Stock at the date of the Closing.
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7. Voting Rights .
(a) The Series C Holders will not have any voting rights, except as set forth in this Section 7 or as otherwise required by law. On each matter on which the Series C Holders are entitled to vote, each share of Series C Preferred Stock will be entitled to one vote, except that when shares of any other class or series of Preferred Stock the Company may issue have the right to vote with the Series C Preferred Stock as a single class on any matter, the Series C Preferred Stock and the shares of each such other class or series will have one vote for each share (excluding accumulated dividends).
(b) Whenever dividends on any shares of Series C Preferred Stock, if any, are in arrears for three or more semi-annual payment periods, the shares of Series C Preferred Stock shall be granted voting rights based upon the number of Conversion Shares that have been issued together with the number of Shares of Series C Preferred Stock that remain unconverted. In addition, the Holders of Series C Preferred Stock shall be entitled to call for a special meeting of stockholders, with the Holders of the Series C Preferred Stock entitled to vote as a class with respect to the election of directors and the Holders of Series C Preferred Stock voting separately as a class with all other classes or series of Preferred Stock the Company may issue upon which like voting rights have been conferred and are exercisable and which are entitled to vote as a class with the Series C Preferred Stock in the election of directors.
(c) If a special meeting is not called by the Company within thirty (30) days after request from the Holders of Series C Preferred Stock as described in Section 7(b), then the Holders of record of at least sixty-seven point five (67.5%) percent of the outstanding Series C Preferred Stock may designate a Holder to call the meeting at the expense of the Company and such meeting may be called by the Holder so designated upon notice similar to that required for annual meetings of stockholders and shall be held at the place designated by the Holder calling such meeting. The Company shall pay all costs and expenses of calling and holding any meeting and of electing directors pursuant to Section 7(b), including, without limitation, the cost of preparing, reproducing and mailing the notice of such meeting, the cost of renting a room for such meeting to be held, and the cost of collecting and tabulating votes.
(d) The voting rights provided for in this Section 7 will not apply if, at or prior to the time when the act with respect to which voting by the Series C Holders would otherwise be required pursuant to this Section 7 shall be effected, all outstanding shares of Series C Preferred Stock shall have been converted.
(e) Except as expressly stated in this Section 7 or as may be required by applicable law, the Series C Preferred Stock will not have any relative, participating, optional or other special voting rights or powers and the consent of the holders thereof shall not be required for the taking of any corporate action.
8. Information Rights . During any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act and any shares of Series C Preferred Stock are outstanding, the Company will use its best efforts to (i) transmit by mail (or other permissible means under the Exchange Act) to all Series C Holders, as their names and addresses appear on the record books of the Company and without cost to such Series C Holders, copies of the annual reports on Form 10-K and quarterly reports on Form 10-Q that the Company would have been required to file with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13 or 15(d) of the Exchange Act if it were subject thereto (other than any exhibits that would have been required).
9. No Preemptive Rights . No Series C Holders will, as holders of Series C Preferred Stock, have any preemptive rights to purchase or subscribe for Common Stock or any other security of the Company.
10. Record Holders . The Company and the transfer agent for the Series C Preferred Stock, if applicable, may deem and treat the record holder of any Series C Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Company nor the transfer agent shall be affected by any notice to the contrary.
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IN WITNESS WHEREOF , the Company has caused this Certificate of Designation to be duly adopted and executed in its name and on its behalf on this 27th day of March 2019
| MINERAL MOUNTAIN MINING & MILLION COMPANY | ||
| By: | /s/ Sheldon Karasik | |
|
Name: |
Sheldon Karasik | |
| Title: | Chief Executive Officer | |
| 5 |
EXHIBIT 99.2
CERTIFICATE OF DESIGNATION
of the
PREFERENCES, RIGHTS, LIMITATIONS, QUALIFICATIONS AND RESTRICTIONS
of the
SERIES D CONVERTIBLE PREFERRED STOCK
of
MINERAL MOUNTAIN MINING & MILLING COMPANY
Mineral Mountain Mining & Milling Company, an Idaho corporation (the “Company”), hereby certifies that, pursuant to the authority conferred upon the Board of Directors of the Company (the “Board”) by its Amended Articles of Incorporation, on March 27, 2019, the Board duly adopted the following resolution providing for the authorization of shares of the Company’s Series D Convertible Preferred Stock (the “Series D Convertible Preferred Stock” or “Series D Preferred Stock”) pursuant to the terms of this Preferences, Rights, Limitations, Qualifications And Restrictions Of The Series D Convertible Preferred Stock the “Series D Certificate of Designations:”
NOW THEREFORE, BE IT RESOLVED, that pursuant to the authority granted to the Board of Directors in accordance with the provisions of the Certificate of Incorporation, as Amended, the Board of Directors hereby authorizes the adoption of this Series D Convertible Preferred Stock Certificate of Designation:
1. Designation and Amount; Designated Holder . The Company has authorized ten million (10,000,000) shares of Preferred Stock, $0.10 par value per share, of which there is one share of Super Voting Class B Preferred Stock issued and outstanding; and, pursuant to this Series D Certificate of Designation, the Company hereby authorizes two hundred thousand (200,000) shares Series D Convertible Preferred Stock, with the rights and preferences set forth below. Only two (2) entities, Draper, Inc. and Carriage House, Inc. (sometimes referred to hereinafter, individually, as a “Series D Holder” and collectively, as the “Series D Holders”) are entitled to be initially designated as the owners of the Series D Convertible Preferred Stock, of which one hundred thousand (100,000) shares of Series D Preferred Stock shall be issued to each. Any transfer of the Series D Preferred Stock to a different Holder must be approved in advance by the Company; provided, however, each Series D Holder shall have the right to transfer the Series D Preferred Stock, or any portion thereof, to any affiliate of, or nominee or shareholder of such Series D Holder, without the approval of the Company.
2. Rank . The Series D Convertible Preferred Stock shall rank: (i) senior to all of the Common Stock, par value $0.001 per share, of the Company (“Common Stock”) and to all other classes or series of capital stock of the Company currently outstanding (collectively, the “Junior Securities”); and (ii) pari passu to all series of preferred stock outstanding, including the Series B Super Voting Preferred Stock or preferred stock issuable pursuant to the transactions related to the issuance of the Series D Preferred Stock, specifically including shares of Series C Convertible Preferred Stock (collectively, the “Senior Securities”).
3. No Maturity, Sinking Fund, Mandatory Redemption . The Series D Preferred Stock has no stated maturity and will not be subject to any sinking fund or mandatory redemption and will remain outstanding indefinitely unless the Holders decide to convert the shares of Series D Preferred Stock as provided in this Certificate of Designation.
4. Liquidation Preference .
(a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of Series D Preferred Stock will be entitled to be paid out of the assets the Company has legally available for distribution to its shareholders on the same basis and pari passu with any shares of Preferred Stock, whether issued and outstanding at the date of this Certificate of Designation or any subsequently authorized and issued Preferred Stock (sometimes referred to collectively, as the “Senor Securities”). The preferential rights of the holders of the Senior Securities will be paid out prior to all Junior Securities with respect to the distribution of assets upon liquidation, dissolution or winding up, a liquidation preference plus an amount equal to any accumulated and unpaid dividends to, but not including, the date of payment, before any distribution of assets is made to holders of Common Stock or any other class or series of Junior Securities or other capital stock of the Company that it may issue that ranks junior to the Series D Preferred Stock as to liquidation rights. The liquidation preference shall be proportionately adjusted in the event of a stock split, stock combination or similar event so that the aggregate liquidation preference allocable to all outstanding shares of Series D Preferred Stock and other Senor Securities immediately prior to such event is the same immediately after giving effect to such event.
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(b) In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Company are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series D Preferred Stock and the corresponding amounts payable on all shares of other classes or series of capital stock of the Company that it may issue ranking on a parity with the Series D Preferred Stock in the distribution of assets, then the holders of the Series D Preferred Stock and all other such classes or series of capital stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
(c) The Series D Holders will be entitled to written notice of any such liquidation, dissolution or winding up no fewer than thirty (30) days and no more than sixty (60) days prior to the payment date. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series D Preferred Stock will have no right or claim to any of the remaining assets of the Company. The consolidation or merger of the Company with or into any other corporation, trust or entity or of any other entity with or into the Company, or the sale, lease, transfer or conveyance of all or substantially all of the property or business the Company, shall not be deemed a liquidation, dissolution or winding up of the Company.
5. Conversion Rights .
(a) The shares of Series D Preferred Stock or any portion thereof then issued and outstanding, at any time and from time to time, may be converted into a number of shares of fully-paid, nonassessable shares of the Company’s Common Stock equal to a total of twenty-five (25.0%) percent of the Company’s outstanding shares of Common Stock on the Date of Closing on a fully-diluted basis (the “Fully-Diluted Common Stock”). The 25% conversion shall be adjusted to include all shares of Common Stock underlying the Company’s existing convertible debt or other convertible securities issuable by the Company (collectively, the “Convertible Securities”), which Convertible Securities are utilized or to be utilized to fund the Company’s mining operations (the “MMMM Mining Operations”) and shall be regardless of any issuance of Common Stock or other Convertible Securities following the execution and delivery of this Certificate of Designation and the issuance of the shares of Series D Preferred Stock, as such Common Stock exists on the date of issuance of the Series D Preferred Stock, including the shares of Series C Preferred Stock which is equal to a total of sixty-seven and one-half (67.5%) percent of the Company’s outstanding shares of Common Stock on the Date of Closing on a fully-diluted basis; provided, however, that in no event shall any holder of Series D Convertible Stock (each, a “Series D Holder” and collectively, the “Series D Holders”) be entitled to convert any portion of their respective shares of Series D Preferred Stock in excess of that portion of the Series D Preferred Stock upon conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by such Series D Holder and its affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of shares of Series D Preferred Stock or the unexercised or unconverted portion of any other security of the Company subject to a limitation on conversion or exercise analogous to the limitations contained herein) and (2) the number of Conversion Shares issuable upon the conversion of the portion of Series D Preferred Stock with respect to which the determination of this proviso is being made, would result in beneficial ownership by any Series D Holder and his/her/its respective affiliates of more than 4.99% of the then outstanding shares of Common Stock. For purposes of the proviso set forth in the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such proviso, provided, however, that the limitations on conversion may be waived by any Series D Holder upon, at the election of such Series D Holder, not less than 61 days’ prior notice to the Company, and the provisions of the conversion limitation shall continue to apply until such 61st day (or such later date, as determined by such Series D Holder, as may be specified in such notice of waiver). The number of shares of Common Stock to be issued upon each conversion of the Series D Preferred Stock (the “Conversion Shares”) shall be determined in accordance with the provisions of Section (5) below, on the date specified in the notice of conversion, in the form Notice of Conversion delivered to the Company by the Series D Holder; provided that the Notice of Conversion is submitted by facsimile or email (or by other means resulting in, or reasonably expected to result in, notice) to the Borrower before 4:00 p.m., New York, New York time on such conversion date (the “Conversion Date”).
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(b) The Company covenants that during the period the Conversion Rights exist, the Company will reserve from its authorized and unissued Common Stock a sufficient number of shares, free from preemptive rights, to provide for the issuance of a number of Conversion Shares equal to the number of shares of Common Stock into which the Series D Preferred Stock is convertible, as set forth in Section 5(a) above, subject to the Anti-Dilution Rights and Limitations set forth in Section 6 below.
(c) The shares of Series D Preferred Stock may be converted by each Series D Holder in whole or in part, on any trading day, at any time from time to time after the issuance date, by submitting to the Company a Notice of Conversion (by facsimile, e-mail or other reasonable means of communication dispatched on the Conversion Date prior to 4:00 p.m., New York, New York time) into a number of shares of the Company’s Common Stock equal to twelve point five (12.5%) percent, subject to the Anti-Dilutions Rights set forth in Section 6 below. Any Notice of Conversion submitted after 4:00 p.m., New York, New York time, shall be deemed to have been delivered and received on the next trading day. Notwithstanding anything to the contrary set forth herein, upon conversion of the Series D Preferred Stock, in whole or in part, in accordance with the terms hereof, the Series D Holders shall physically surrender the shares of Series D Preferred Stock to the Company, which shall return to the respective Series D Holders a new certificate evidencing the number of shares of Series D Preferred Stock that remain unconverted.
(d) Upon receipt by the Company from the Holder of a facsimile transmission or e-mail (or other reasonable means of communication) of a Notice of Conversion meeting the requirements for conversion as provided herein, the Company shall issue and deliver or cause to be issued and delivered to or upon the order of the Holders certificates for the Conversion Shares (or cause the electronic delivery of the Conversion Shares) within three (3) trading days after such receipt of the Notice of Conversion.
6. Anti-Dilution Rights and Limitations . The Company has determined that the Series C Holders, the Series D Holders and the Common Stock Holders shall have the following anti-dilution protection (the “Anti-Dilution Rights and Limitations”), in the event any funds or proceeds received under an offering pursuant to the pending Equity Financing Agreement (that is the subject to the effective Registration Statement, Registration No. 333-227839), any other financing facility or any other transaction. The Company hereby agrees to grant to the Common Stock Holders of record on the Closing Date and the Series C and Series D Holders, and their assigns, successors and purchasers, the following irrevocable Anti-Dilution Rights and Limitations:
(a) In the event any funds or proceeds received under an offering pursuant to the Equity Financing Agreement subject to the above-referenced Registration Statement, including any amendments thereto, after the Closing Date, the Common Stock Holders shall be diluted at the same ratio as the Series D Holders and other holders of the Company’s Preferred Stock (collectively the “Preferred Stock Holders”) such that the aforesaid Common Stock Holders shall maintain a percentage interest of 7.5% of all outstanding capital stock of the Company immediately prior to such Offering shall equal their percentage interest of the outstanding capital stock of Company after such subsequent Offering (after giving effect to the conversion of any convertible securities issued pursuant to the Equity Financing Agreement).
(b) In the event of any new business, funds or proceeds acquired or received under any other financing facility, including but not limited to convertible promissory notes (other than convertible notes issued to fund the MMMM Mining Operations), convertible preferred stock, common or preferred stock options or warrants, and mergers or acquisitions, the Common Stock Holders shall be diluted at the same ratio as the Preferred Stock Holders such that the Common Stock Holders shall maintain a percentage interest of 7.5% of all outstanding capital stock of the Company immediately prior to such transaction (after giving effect to the conversion of any convertible securities issued in the subsequent financing); provided, however, that the Anti-Dilution Rights and Limitations applicable to the Common Stock Holders shall not apply relative to any shares of Common Stock underlying any convertible notes issued and outstanding as of the Closing or issued subsequent to the Closing, by or for the benefit of MMMM to fund the MMMM Mining Operations.
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(c) Should the Company sell additional shares of restricted Common Stock or Preferred Stock in a private placement or a public offering, shareholders of the Company’s Common Stock shall be diluted at the same ratio as all Preferred Stock Holders such that the Common Stock Holders shall maintain a percentage interest of the outstanding capital stock of 7.5% of Company immediately prior to such private placement. Notwithstanding the foregoing, in the event that such sales of additional shares of restricted Common Stock or Preferred Stock in a private placement or a public offering for the sole purpose of funding the MMMM Mining Operations, then the Anti-Dilution Rights and Limitations provisions of this Paragraph 6 applicable to the shareholders of the Company’s Common Stock at the Closing shall not apply and any dilution resulting from such issuances and sales of restricted Common Stock or Preferred Stock in a private placement or a public offering for the benefit of the MMMM Mining Operations shall dilute the 7.5% equity interest of shareholders of the Company’s Common Stock at the Closing and not the equity interest of the holders of the Preferred Stock.
(d) Notwithstanding the foregoing, in the event that the Company issues convertible notes or other securities (other than pursuant to Equity Line Transactions and the $100,000 deliverable within five (5) days of Closing) for the purpose of funding the MMMM Mining Operations, as well as all existing convertible notes at the date of the Closing, shall only dilute the 7.5 equity interest of the Shareholders of the Company’s Common Stock at the date of the Closing.
7. Voting Rights .
(a) The Series D Holders will not have any voting rights, except as set forth in this Section 7 or as otherwise required by law. On each matter on which the Series D Holders are entitled to vote, each share of Series D Preferred Stock will be entitled to one vote, except that when shares of any other class or series of Preferred Stock the Company may issue have the right to vote with the Series D Preferred Stock as a single class on any matter, the Series D Preferred Stock and the shares of each such other class or series will have one vote for each share (excluding accumulated dividends).
(b) Whenever dividends on any shares of Series D Preferred Stock, if any, are in arrears for three or more semi-annual payment periods, the shares of Series D Preferred Stock shall be granted voting rights based upon the number of Conversion Shares that have been issued together with the number of Shares of Series D Preferred Stock that remain unconverted. In addition, the Holders of Series D Preferred Stock shall be entitled to call for a special meeting of stockholders, with the Holders of the Series D Preferred Stock entitled to vote as a class with respect to the election of directors and the Holders of Series D Preferred Stock voting separately as a class with all other classes or series of Preferred Stock the Company may issue upon which like voting rights have been conferred and are exercisable and which are entitled to vote as a class with the Series D Preferred Stock in the election of directors.
(c) If a special meeting is not called by the Company within thirty (30) days after request from the Holders of Series D Preferred Stock as described in Section 7(b), then the Holders of record of at least twenty-five (25%) percent of the outstanding Series D Preferred Stock may designate a Holder to call the meeting at the expense of the Company and such meeting may be called by the Holder so designated upon notice similar to that required for annual meetings of stockholders and shall be held at the place designated by the Holder calling such meeting. The Company shall pay all costs and expenses of calling and holding any meeting and of electing directors pursuant to Section 7(b), including, without limitation, the cost of preparing, reproducing and mailing the notice of such meeting, the cost of renting a room for such meeting to be held, and the cost of collecting and tabulating votes.
(d) The voting rights provided for in this Section 7 will not apply if, at or prior to the time when the act with respect to which voting by the Series D Holders would otherwise be required pursuant to this Section 7 shall be effected, all outstanding shares of Series D Preferred Stock shall have been converted.
(e) Except as expressly stated in this Section 7 or as may be required by applicable law, the Series D Preferred Stock will not have any relative, participating, optional or other special voting rights or powers and the consent of the holders thereof shall not be required for the taking of any corporate action.
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8. Information Rights . During any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act and any shares of Series D Preferred Stock are outstanding, the Company will use its best efforts to (i) transmit by mail (or other permissible means under the Exchange Act) to all Series D Holders, as their names and addresses appear on the record books of the Company and without cost to such Series D Holders, copies of the annual reports on Form 10-K and quarterly reports on Form 10-Q that the Company would have been required to file with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13 or 15(d) of the Exchange Act if it were subject thereto (other than any exhibits that would have been required).
9. No Preemptive Rights . No Series D Holders will, as holders of Series D Preferred Stock, have any preemptive rights to purchase or subscribe for Common Stock or any other security of the Company.
10. Record Holders . The Company and the transfer agent for the Series D Preferred Stock, if applicable, may deem and treat the record holder of any Series D Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Company nor the transfer agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF , the Company has caused this Certificate of Designation to be duly adopted and executed in its name and on its behalf on this 27th day of March 2019
| MINERAL MOUNTAIN MINING & MILLION COMPANY | ||
| By: | /s/ Sheldon Karasik | |
|
Name: |
Sheldon Karasik | |
| Title: | Chief Executive Officer | |
| 5 |