BITMINE IMMERSION TECHNOLOGIES, INC. (Form: 8-K, Received: 09/06/2022 17:22:17)

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): August 29, 2022

BITMINE IMMERSION TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction

of incorporation or organization)

000-56220

(Commission

File Number)

84-3986354

(IRS Employer

Identification No.)

2030 Powers Ferry Road SE, Suite 212,

Atlanta, Georgia 30339

(Address of principal executive office) (Zip Code)

(404) 816-8240

(Registrants’ telephone number, including area code)

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))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
None	None	None

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter)

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. ¨

Section 1 – Registrant’s Business and Operations

Item 1.01 Entry into a Material Definitive Agreement.

On August 31, 2022, Bitmine Immersion Technologies, Inc. (the “Company”) agreed to convert all of the principal and interest owed under a Line of Credit Agreement with Innovative Digital Investors Emerging Technology, L.P.(“IDI) into shares of Series A Convertible Preferred Stock with a stated value equal to the principal and interest converted. The conversion resulted in the conversion of $3,039,662 of indebtedness into 303,966 shares of Series A Convertible Preferred Stock. IDI is a limited partnership controlled by Jonathan Bates, the Company’s Chairman, and Raymond Mow, the Company’s Chief Financial Officer and a Director.

Section 3 – Securities and Trading Markets

Item 3.02 Unregistered Sales of Equity Securities.

On August 31, 2022, the Company issued 303,966 shares of Series A Convertible Preferred Stock to satisfy $3,039,662 of indebtedness owed to IDI. See Item 1.01. IDI is a limited partnership controlled by Jonathan Bates, the Company’s Chairman, and Raymond Mow, the Company’s Chief Financial Officer and a Director. The shares were issued pursuant to the exemption from registration under the Securities Act of 1933 provided by Section 4(a)(2) thereunder.

Item 3.03 Material Modification to Rights of Security Holders.

On August 29, 2022, the Company filed an Amended and Restated Certificate of Incorporation (“A&R COI”). On August 31, 2022, filed a Certificate of Designation to authorize its Series A Convertible Preferred Stock. Both the A&R COI and the Certificate of Designation may be deemed to modify the rights of the Company’s common stock. See Item 5.03 for a more complete description of the terms of the A&R COI and the Certificate of Designation.

Section 5 – Corporate Governance and Management

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

(a) On August 29, 2022, the Company filed an Amended and Restated Certificate of Incorporation (the “A&R COI”) with the Delaware Secretary of State. The A&R COI made the following changes to the Company’s prior Certificate of Incorporation (the “Prior COI”):

The A&R COI authorizes the Company to issue up to 20,000,000 shares of preferred stock, par value $0.0001 per share, with such rights and terms that the board of directors may approve from time to time, whereas the Prior COI did not authorize the Company to issue any preferred stock;

The A&R COI provides that special meetings of stockholders may be called by the chairman of the board of directors, the chief executive officer or a majority of the board of directors. The Prior COI was governed by the default provisions of the Delaware General Corporate Law (“DGCL”) in regard to special meetings of stockholders, which only provides that special meetings can be called by the board of directors.

The A&R COI provides that the liability of directors shall be limited to the maximum extent permitted by Delaware law. The Prior COI did not address the issue of director liability.

The A&R COI provides that the directors and officers shall be indemnified against action, suit or proceeding asserted against the director or officer by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the Company in such capacity with another entity. The Prior COI did not address the issue of director and officer indemnification.

The A&R COI provides that Court of Chancery in the State of Delaware shall be the exclusive forum for any stockholder that brings a derivative action on behalf of the Company, any claim for breach of fiduciary duty owed by any director, officers or employee of the Company, any action asserting a breach of the A&R COI or Delaware corporate law, or any action asserting a claim governed by the internal affairs doctrine. The Prior COI did not contain any provision addressing the jurisdiction of claims against the Company or brought on behalf of the Company.

The A&R COI contains various provisions that relate to the election or appointment of directors, and do not represent in any change in the manner in which directors may be elected or appointed under the Prior COI.

The A&R COI provides that the bylaws may be amended or repealed at any time by vote of a majority of the board of directors, or the vote of stockholders, provided that the required vote of stockholders shall be 50% of the shares entitled to vote if the board of directors recommends that stockholders approve the amendment or repeal, and otherwise the required vote shall be 75% of the shares entitled to vote. The Prior COI did not address the vote required for stockholders to approve an amendment or repeal of the bylaws, and therefore the matter as governed by the default provisions of the DGCL. This provision does not represent a change to the stockholder vote required to amend or repeal the bylaws where the board of directors recommends the amendment or repeal, but does increase the stockholder vote required where the board of directors does not recommend the amendment or repeal.

The A&R COI provides that the A&R COI may be amended or repealed at any time by vote of a majority of the outstanding shares of common stock entitled to vote on the amendment or repeal at a duly called meeting of stockholders called expressly for that purpose, provided that the affirmative vote of not less than 75% of the outstanding shares of common stock shall be required to amend the provisions of the A&R COI that relate to the election of directors, the amendment of the bylaws, meetings of stockholders, limitation of liability and indemnification for officers and directors, the choice of Delaware as the exclusive forum for certain litigation involving the Company, and the provisions relating to the required vote to amend the A&R COI. The Prior COI did not address the vote required to amend the Prior COI, and therefore it was governed by the default provisions of the DGCL, which generally allows amendments if they are approved by a majority of stockholders in attendance at a duly called meeting of stockholders at which a quorum is present.

The foregoing description of the A&R COI is only a summary. Reference is made the A&R COI filed herewith as an Exhibit for the complete terms of the A&R COI.

(b) On August 31, 2022, the Company filed a Certificate of Designations, Rights and Preferences of Series A Convertible Preferred Stock (the “Certificate of Designation”) with the Delaware Secretary of State, which authorized the creation and issuance of up to 500,000 shares of Series A Convertible Preferred Stock (the “Series A Preferred”). Under the Certificate of Designation, the Series A Preferred has the following rights:

Dividends: Each share of Series A Preferred is entitled to receive non-cumulative dividends equal to the amount of dividends that the holder of such share would have received if such share of Series A Preferred were converted into shares of common stock immediately prior to the record date of the dividend declared on the common stock.

Liquidation Preference: The Series A Preferred Stock is entitled to receive, prior to any distribution to any junior class of securities, an amount equal to $10 per share, plus any accrued but unpaid dividends, as a liquidation preference before any distribution may be made to the holders of any junior security, including the common stock.

Voting Rights: Each holder of Series A Preferred Stock shall vote with holders of the common stock upon any matter submitted to a vote of shareholders, in which event it shall have the number of votes equal to the number of shares of common stock into which such share of Series A Preferred Stock would be convertible on the record date for the vote or consent of shareholders. Each holder of Series A Preferred Stock shall also be entitled to one vote per share on each submitted to a class vote of the holders of Series A Preferred Stock.

Directors: The Series A Preferred Stock has the exclusive right to nominate and vote on two (2) members of the board of directors.

Voluntary Conversion Rights: Each share of Series A Preferred Stock is convertible into that number of shares of common stock equal to the liquidation preference of the Series A Preferred divided by a conversion price of $0.575 per share.

Rank: The Series A Preferred ranks senior to the common stock and any other class or series of preferred stock that may be authorized.

Redemption by Company: The Company may redeem all of the Series A Preferred at any time on twenty days notice by payment of the liquidation preference of the Series A Preferred.

Redemption by the Holders: Any holder of Series A Preferred may request that some or all of its Series A Preferred be redeemed to the extent of 30% of the liquid net assets of the Company in excess of $2 million. To the extent any holder requests redemption under this provision, the Company is required to send a notice to all other Series A Preferred holders, who will be entitled to request redemption of some or all of their shares as well. Each holder is required to redeem at least the lesser of 10,000 shares or the number of shares of Series A Preferred held by the holder.

Redemption on Fundamental Transaction: In the event the Company engages in a fundamental transaction, a majority of the holders of Series A Preferred may require the Company to redeem all of the Series A Preferred at the closing of the transaction.

Right to Participate in Future Fundings: Each holder of Series A Preferred has the right to participate in future capital raising transactions to the extent of its proportionate ownership of the Company on an as converted basis. The right extents to any issuance of common or preferred stock or debt securities convertible into common or preferred stock, except for certain exempted transactions.

Anti-Dilution Protection: The conversion price of the Series A Preferred is subject to reduction to the extent the company issues shares of common stock at a purchase price less than the then current conversion price, (ii) debt or equity securities convertible into common stock at a conversion price less than the then current conversion price, (iii) options or warrants exercisable for common stock at an exercise price less than the then current conversion price, or (iv) options or warrants to purchase convertible debt or equity securities, where the combined exercise and conversion prices would enable the holder to acquire shares of common stock for less than the then current conversion price.

The foregoing description of the Series A Preferred is only a summary. Reference is made the Certificate of Designation filed herewith as an Exhibit for the complete terms of the Series A Preferred.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Item No.		Description
	3.1	Amended and Restated Certificate of Incorporation filed August 29, 2022.
	3.2	Certificate of Designations, Rights and Preferences of Series A Convertible Preferred Stock of Bitmine Immersion Technologies, Inc. filed August 31, 2022
	104	The cover page from this Current Report on Form 8-K, formatted in Inline XBRL

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.

	Bitmine Immersion Technologies, Inc.


Dated: September 6, 2022	By:	/s/ Jonathan Bates
	Name:	Jonathan Bates
	Title:	Chief Executive Officer

Exhibit 3.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

BITMINE IMMERSION TECHNOLOGIES, INC.

August 29, 2022

Bitmine Immersion Technologies, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:

1. The name of the Corporation is “Bitmine Immersion Technologies, Inc.”. The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on November 19, 2019, under the name of Sandy Springs Holdings, Inc., and was amended by the Certificate of Amendment, which was filed with the Secretary of State of the State of Delaware on July 19, 2021 (collectively, the “Original Certificate”).

2. This Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate”), which both restates and amends the provisions of the Original Certificate, was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware and by written consent of the Corporation’s stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware (the “DGCL”).

3. The text of the Original Certificate is hereby restated and amended in its entirety to read as follows:

ARTICLE I

NAME

The name of the corporation is Bitmine Immersion Technologies, Inc. (the “Corporation”).

ARTICLE II
PURPOSE

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

ARTICLE III
REGISTERED AGENT

The street address of the registered office of the Corporation in the State of Delaware is 1201 Orange St., Suite 600, One Commerce Center, in the City of Wilmington, County of New Castle, State of Delaware, 19801, and the name of the Corporation’s registered agent at such address is Agents and Corporation, Inc.

ARTICLE IV
CAPITALIZATION

Section 4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 520,000,000 shares, consisting of (a) 500,000,000 shares of common stock (the “Common Stock”), and (b) 20,000,000 shares of preferred stock (the “Preferred Stock”).

Section 4.2 Preferred Stock. The Board of Directors of the Corporation (the “Board”) is expressly authorized at any time, and from time to time, to provide for the issuance of shares of Preferred Stock in one or more series, with such voting powers, full or limited, or without voting powers and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue thereof adopted by the Board of Directors and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions. Subject to the limitations prescribed by law and in accordance with the provisions hereof, a Preferred Stock Designation may designate:

(a) A series and the number of shares to constitute the series;

(b) The dividend rate, if any, of the series, the conditions and dates upon which such dividends shall be payable, the relation which such dividends shall bear to the dividends payable on any other class or classes of stock, and whether such dividends shall be cumulative or noncumulative;

(c) Whether the shares of the series shall be subject to redemption by the Corporation and, if made subject to such redemption, the times, prices and other terms and conditions of such redemption;

(d) The terms and amount of any sinking fund provided for the purchase or redemption of the shares of the series;

(e) Whether or not the shares of the series shall be convertible into or exchangeable for shares of any other class or classes or of any other series of any class or classes of stock of the Corporation, and, if provision be made for conversion or exchange, the times, prices, rates, adjustments and other terms and conditions of such conversion or exchange;

(f) The extent, if any, to which the holders of the shares of the series shall be entitled to vote with respect to the election of directors or otherwise;

(g) The restrictions, if any, on the issue or reissue of any additional Preferred Stock; and

(h) The rights of the holders of the shares of the series upon the dissolution, liquidation, or winding up of the Corporation.

The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, without a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any series of Preferred Stock.

Section 4.3 Common Stock. Subject to the prior or equal rights, if any, of the Preferred Stock of any and all series stated and expressed by the Board of Directors in the Preferred Stock Designation providing for the issuance of such Preferred Stock, the holders of Common Stock shall be entitled (i) to receive dividends when and as declared by the Board of Directors out of any funds legally available therefor, (ii) in the event of any dissolution, liquidation or winding up of the Corporation, to receive the remaining assets of the Corporation, ratably according to the number of shares of Common Stock held, and (iii) to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders; provided that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate (including any Preferred Stock Designations setting forth the terms of any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate (including any Preferred Stock Designations setting forth the terms of any series of Preferred Stock). No holder of Common Stock shall have any preemptive right to purchase or subscribe for any part of any issue of stock or of securities of the Corporation convertible into stock of any class whatsoever, whether now or hereafter authorized.

Section 4.4 Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.

ARTICLE V
BOARD OF DIRECTORS

Section 5.1 Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board, except as otherwise provided herein or required by law.

Section 5.2 Number, Election and Term.

(a) The number of directors of the Corporation shall be fixed from time to time in the manner provided in the Bylaws. Subject to Section 5.4 hereof, if the number of directors is changed, any decrease shall not shorten the term of any incumbent director.

(b) Directors shall be elected by a plurality of the votes cast at an annual meeting of stockholders by holders of Common Stock. The election of directors need not be by written ballot unless the Bylaws of the corporation shall so provide.

(c) Subject to Section 5.4 hereof, a director shall hold office until the next annual meeting of stockholders following the director’s election or appointment by the Board and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.

(d) No stockholder will be permitted to cumulate votes at any election of directors.

Section 5.3 Newly Created Directorships and Vacancies. Subject to Section 5.4 hereof, newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office until the next annual meeting of stockholders following the director’s election or appointment by the Board and his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.

Section 5.4 Preferred Stock - Directors. Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Amended and Restated Certificate (including any Preferred Stock Designation) and such directors shall not be included in any of the classes created pursuant to this Article V unless expressly provided by such terms.

ARTICLE VI
BYLAWS

Except as otherwise provided by law, the Bylaws of the Corporation may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the Directors then in office. The Bylaws of the Corporation may be amended or repealed at any annual meeting of stockholders, or special meeting of stockholders called for such purpose, by the affirmative vote of at least 75% of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class; and further provided further, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

ARTICLE VII
MEETINGS OF STOCKHOLDERS

Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the ability of the stockholders to call a special meeting is hereby specifically denied. Except as provided in the foregoing sentence, special meetings of stockholders may not be called by another person or persons.

ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION

Section 8.1 Limitation of Director Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended unless he or she violated his or her duty of loyalty to the Corporation or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from his or her action as a director. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

Section 8.2 Indemnification and Advancement of Expenses.

(a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.

(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.

(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.

(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.

ARTICLE IX
EXCLUSIVE FORUM FOR CERTAIN LAWSUITS

Section 9.1 Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Court of Chancery”) shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the DGCL or this Amended and Restated Certificate or the Bylaws or (d) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine, except for, as to each of (a) through (d) above, any claim arising under the Securities Act of 1933, as amended, or the Exchange Act, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction, in which case, any such claim shall be brought in any other court located in the State of Delaware possessing subject matter jurisdiction.

Section 9.2 Consent to Jurisdiction. If any action the subject matter of which is within the scope of Section 9.1 immediately above is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (a) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce Section 9.1 immediately above (an “FSC Enforcement Action”) and (b) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.

Section 9.3 Severability. If any provision or provisions of this Article IX shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article IX (including, without limitation, each portion of any sentence of this Article IX containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article IX.

ARTICLE X
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

The Corporation reserves the right to amend or repeal this Amended and Restated Certificate in the manner now or hereafter prescribed by statute and this Amended and Restated Certificate, and all rights conferred upon stockholders herein are granted subject to this reservation. Whenever any vote of the holders of capital stock of the Corporation is required to amend or repeal any provision of this Amended and Restated Certificate, and in addition to any other vote of holders of capital stock that is required by this Amended and Restated Certificate or by law, such amendment or repeal shall require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of the majority of the outstanding shares of each class entitled to vote thereon as a class, at a duly constituted meeting of stockholders called expressly for such purpose; provided, however, that the affirmative vote of not less than 75% of the outstanding shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of not less than 75% of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of Article V, Article VI, Article VII, Article VIII, Article IX or Article X of this Amended and Restated Certificate.

IN WITNESS WHEREOF, Bitmine Immersion Technologies, Inc. has caused this Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.

BITMINE IMMERSION TECHNOLOGIES, INC.


By:	/s/ Jonathan Bates
	Name:	Jonathan Bates
	Title:	Chief Executive Officer

Exhibit 3.2

WRITTEN CONSENT OF

DIRECTORS OF BITMINE IMMERSION TECHNOLOGIES, INC.

The undersigned, being all of the directors of Bitmine Immersion Technologies, Inc., a Delaware corporation (the “Corporation”), do hereby waive any and all requirements for notice of the time and place, and any special purposes, of a meeting of the Board of Directors of the Corporation, do hereby agree and consent, pursuant to the By-Laws of the Corporation and the applicable provisions of the Delaware General Corporation Law, to the adoption of, and hereby do adopt, the following resolutions and the actions specified therein:

WHEREAS, at a board meeting on August 23, 2022, the Board reviewed and approved a term sheet for the creation of a series of preferred stock, to be known as the “Series A Convertible Preferred Stock” (the “Series A Preferred”), which would be issued primarily in exchange for all of the indebtedness owed by the Corporation to Innovative Digital Investors Emerging Technology, LP (“IDI”) under a line of credit agreement with the company;

WHEREAS, the conversion of the indebtedness owed to IDI into equity is important to the Corporation’s ability to list its stock for trading on a national securities exchange, which is in the best interests of the Corporation and its shareholders;

WHEREAS, the final form of Certification of Designation, Rights and Preferences (the “Certificate of Designation”) to create the Series A Preferred is attached hereto as an Exhibit;

It is therefore,

RESOLVED, that the Certificate of Designation to create the Series A Preferred which is attached hereto as an Exhibit is hereby approved, including the Board resolution contained in the preamble, and the Corporation is authorized to file the Certificate of Designation with the Delaware Secretary of State;

RESOLVED, that Corporation is hereby authorized to convert all principal and interest owed to IDI into shares of Series A Preferred that have a total Stated Value (as defined in the Certificate of Designation) equal to the total amount of principal and interest owed to IDI as of the date of conversion;

RESOLVED, that any executive officer of the Corporation be, and hereby is, authorized, empowered and directed, from time to time, to take such additional action and to execute, certify and deliver to the transfer agent of the Corporation, as any appropriate or proper to implement the provisions of the foregoing resolutions.

RESOLVED, that any and all actions previously taken in furtherance of the transactions authorized or contemplated by the foregoing resolutions, including any action taken to facilitate the consummation of any of the transactions contemplated thereby, by any officer of the Corporation, be, and they hereby are, ratified, approved and confirmed.

RESOLVED, that this Written Consent may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same document, that the different Directors of the Corporation need not be signatories to the same counterpart.

IN WITNESS WHEREOF, we have duly executed this Written Consent in order to give our written consent hereto as of the 30^th day of August 2022, notwithstanding the actual date of signing.


Jonathan Bates		Erik S. Nelson

Raymond Mow		Michael Maloney

Seth Bayles

CERTIFICATE OF DESIGNATIONS, RIGHTS AND PREFERENCES

SERIES A CONVERTIBLE PREFERRED STOCK

BITMINE IMMERSION TECHNOLOGIES, INC.

Pursuant to Section 151 of the Delaware General Corporation Law, Bitmine Immersion Technologies, Inc., a Delaware corporation (the “Corporation”), DOES HEREBY CERTIFY:

The Amended and Restated Certificate of Incorporation of the Corporation (the “Charter”) confers upon the Board of Directors of the Corporation (the “Board of Directors”) the authority to provide for the issuance of shares of preferred stock in series and to establish the number of shares to be included in each such series and to fix the powers, designations, preferences and rights of the shares of each such series and any qualifications, limitations or restrictions thereof. On August 30, 2022, the Board of Directors duly adopted the following resolution creating a series of preferred stock designated as the Series A Convertible Preferred Stock, comprised initially of 500,000 shares and such resolution has not been modified and is in full force and effect on the date hereof:

RESOLVED that, pursuant to the authority vested in the Board of Directors in accordance with the provisions of the Charter, a series of the class of authorized preferred stock, par value $0.0001 per share, of the Corporation is hereby created and that the designation and number of shares thereof and the powers, preferences and rights of the shares of such series, and the qualifications, limitations and restrictions thereof are as follows:

TERMS OF SERIES A PREFERRED STOCK

Section 1. Designation and Number of Shares. There is hereby created out of the authorized and unissued shares of Series A Preferred Stock of the Corporation a series of Series A Preferred Stock designated as the “Series A Convertible Series A Preferred Stock” (hereinafter, the “Series A Preferred Stock”) The number of shares constituting the Series A Preferred Stock shall be Five Hundred Thousand (500,000). Any holder of a share of Series A Preferred Stock shall be referred to as a “Holder.”

Section 2. Rank. The Series A Preferred Stock shall rank: (i) senior to the Corporation’s Common Stock, $0.0001 par value per share (“Common Stock”) and (ii) any subsequent series of Preferred Stock which is designated by the Corporation (with the Common Stock, a “Junior Security”), as to distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (all such distributions being referred to collectively as “Distributions”). In the event of any voluntary or involuntary Liquidation (as hereinafter defined) of the Corporation, before any distribution of assets of the Corporation shall be made to or set apart for the holders of any Junior Security, the Holders of Series A Preferred Stock shall be entitled to receive payment out of such assets of the Corporation in an amount equal to Ten Dollars ($10) per share of Series A Preferred Stock, plus any unpaid dividends (if declared) on the Series A Preferred Stock (such amount being referred to as the “Liquidation Preference”).

Section 3. Dividends. Other than a distribution in connection with a Liquidation, each share of Series A Preferred Stock shall be entitled to receive, when, if and as declared by the Board, out of funds legally available therefore, non-cumulative dividends, distributions of assets in kind, or distributions of indebtedness by the Corporation equal to the amount of dividends, distributions and evidences of indebtedness that the Holder of such share would have received if such share were converted into shares of Common Stock under the circumstances described in Section 5 hereof immediately prior to the record date of the dividend or distribution declared on the Common Stock.

Section 4. Voting Rights. Except as set forth specifically below, the Holder of each share of the Series A Preferred Stock shall be entitled to the number of votes equal to the number of shares of Common Stock into which such share of Series A Preferred Stock would be convertible under the circumstances described in Section 5 hereof on the record date for the vote or consent of shareholders. The foregoing notwithstanding, with respect to the election of directors, until there are no longer any shares of Series A Preferred Stock outstanding, the Holders of the Series A Preferred Stock shall vote together as a separate class to elect two (2) members of the Board of Directors (the “Series A Directors”), who shall be nominated by the Holders of a majority of the outstanding shares of Series A Preferred Stock. The Holders of Series A Preferred Stock shall vote together with the holders of Common Stock and other voting capital stock of the Corporation to elect all other members of the Board of Directors. In the event the Holders of Series A Preferred Stock do not exercise their right to elect Series A Directors, such Holders will be permitted to send a non-voting representative in an observer capacity to all meetings of the Board of Directors of the Corporation, with respect to which reasonable notice shall be provided to such Holders, including notice of all written consents taken in lieu of a meeting of the Board of Directors of the Corporation prior to execution of any such consents. Each Holder of a share of the Series A Preferred Stock shall be entitled to receive the same prior notice of any shareholders’ meeting as provided to the holders of Common Stock in accordance with the Bylaws of the Corporation, as well as prior notice of all shareholder actions to be taken by legally available means in lieu of meeting, and shall vote with holders of the Common Stock upon any matter submitted to a vote of shareholders, except those matters required by law, or by the terms hereof, to be submitted to a class vote of the Holders of Series A Preferred Stock.

Section 5. Conversion of Preferred Shares to Common. The Series A Preferred Stock shall be convertible into shares of Common Stock as follows:

	(a)	Voluntary Conversion. Each share of Series A Preferred Stock shall be convertible at any time by the Holder thereof at the office of the transfer agent for the Common Stock (the “Transfer Agent”), and at such other place or places, if any, as the board of directors of the Corporation may designate, into that number of fully paid and non-assessable shares (calculated as to each conversion to the nearest l/100th of a share) of Common Stock equal to the Liquidation Preference of the share of Series A Preferred Stock divided by the Conversion Price. The “Conversion Price” shall initially be $0.575 per share, provided that the Conversion Price shall be subject to adjustment from time to time in certain instances as hereinafter provided.

	(b)	Delivery of Certificates. Before any Holder of shares of the Series A Preferred Stock shall be entitled to convert the same into Common Stock, the Holder shall surrender the certificate or certificates therefor, duly endorsed to the Corporation or in blank, at the office of the Transfer Agent or at such other place or places, if any, as the board of directors of the Corporation has designated, and shall give written notice to the Corporation at said office or place on the form of Notice of Conversion attached hereto as Exhibit I that it elects to convey the same and shall state in writing therein the name or names (with addresses) in which it wishes the certificate or certificates for Common Stock to be issued. The Corporation will, as soon as practicable thereafter, issue and deliver at said office or place to such Holder, or to its nominee or nominees, certificates for the number of full shares of Common Stock to which it shall be entitled as aforesaid. Shares of the Series A Preferred Stock shall be deemed to have been converted as of the close of business on the date of the surrender of such shares for conversion as provided above, and the person or persons entitled to receive the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock as of the close of business on such date.

	(c)	No Fractional Shares. If any conversion of the Series A Preferred Stock would create a fractional share of Common Stock or a right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares of Common Stock issuable upon conversion, in the aggregate, shall be rounded up to the nearest whole share.

(d)

Adjustment to Conversion Price. The Conversion Price in effect at any time shall be subject to adjustment as follows:

	(i)	In case the Corporation shall (A) declare a dividend on its Common Stock in shares of its capital stock, (B) subdivide its outstanding shares of Common Stock, (C) combine its outstanding shares of Common Stock into a smaller number of shares, or (D) issue by reclassification of its Common Stock (including any such reclassification in connection with a consolidation or merger in which the Corporation is the continuing corporation) any shares of its capital stock, the Conversion Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the Holder of any share of the Series A Preferred Stock surrendered for conversion after such time shall be entitled to receive the kind and amount of shares which it would have owned or have been entitled to receive had such share of the Series A Preferred Stock been converted immediately prior to such time. Such adjustment shall be made successively whenever any event listed above shall occur.

	(ii)	For the purpose of any computation under this Certificate of Designation, the “Current Market Price” on any date shall be deemed to be the average of the daily closing prices per share of Common Stock for 20 consecutive business days selected by the Corporation commencing 35 business days before such date. The closing price for each day shall be the last sale price or, in case no such sale takes place on such day, the average of the closing bid and asked prices, in either case as quoted on the on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if it is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices as reported by the service on which the Common Stock is quoted.

	(iii)	All calculations under this Section 5(d) shall be made to the nearest one-hundredth of a cent or the nearest l/100th of a share, as the case may be.

	(iv)	In case of any consolidation or merger of the Corporation with or into any other corporation (other than a consolidation or merger in which the Corporation is the continuing corporation and which does not result in any reclassification, conversion, or change of the outstanding shares of Common Stock), lawful provision shall be made so that Holders of Series A Preferred Stock shall thereafter have the right to convert each share of Series A Preferred Stock into the kind and amount of shares of stock and/or other securities or property receivable upon such merger by a holder of the number of shares of Common Stock into which such shares of Series A Preferred Stock might have been converted immediately prior to such consolidation or merger. Such provision shall also provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5(d).

	(v)	the Holder of each share of Series A Preferred Stock shall after such consolidation, merger, sale or transfer have the right to convert such share of the Series A Preferred Stock into the kind and amount of shares of stock and other securities and property which such Holder would have been entitled to receive upon such consolidation, merger, sale or transfer if he had held the Common Stock issuable upon the conversion of such share of the Series A Preferred Stock immediately prior to such consolidation, merger, sale or transfer.

	(vi)	In the event that at any time, as a result of an adjustment made pursuant to paragraph (i) above, the Holder of any share of Series A Preferred Stock surrendered for conversion shall become entitled to receive any securities other than shares of Common Stock, thereafter the amount of such other securities so receivable upon conversion of any share of the Series A Preferred Stock shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in paragraphs (i) to (iv), inclusive, above, and the provisions of this Section 5(d) with respect to the Common Stock shall apply on like terms to any such other securities.

(vii)

No adjustment in the Conversion Price shall be required unless such adjustment would require a change of at least l% in the Conversion Price; provided, however, that any adjustments which by reason of this paragraph (vi) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.

(e)

Notice of Adjustment. Whenever the Conversion Price is adjustable as herein provided:

	(i)	the Corporation shall promptly file with the Transfer Agent for the Series A Preferred Stock a certificate of the treasurer of the Corporation setting forth the adjusted Conversion Price and showing in reasonable detail the facts upon which such adjustment is based, including a statement of the consideration received or to be received by the Corporation for any shares of Common Stock issued or deemed to have been issued; and

	(ii)	a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price, and within ten (10) business days after it is required, said notice shall be mailed to all Holders of Series A Preferred Stock determined as of the date the notice was first required, and upon the mailing of such notice no other notice need be given of that adjustment in the Conversion Price.

	(f)	Reservation of Shares. The Corporation shall at all times reserve and keep available or make provision to increase, reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Series A Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding Series A Preferred Stock into Common Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of Series A Preferred Stock, the Corporation will take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

	(g)	Taxes. The issue of the stock certificates upon conversion of the Series A Preferred Stock shall be made without charge to the converting Holder for any transfer tax in respect of such issue; provide, however, that the Corporation shall be entitled to withhold any applicable withholding taxes with respect to such issue, if any. The Corporation shall not however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares in any name other than that of the Holder of any of the Series A Preferred Stock converted, and the Corporation shall not be required to issue or deliver any such stock certificated unless and until the person on persons requesting the issue thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.

Section 6. Redemption.

	(a)	Redemption by Corporation. The Corporation may, at any time on twenty (20) days prior written notice to the Holder, redeem all, and not less than all, shares of Series A Preferred Stock which are outstanding for the Liquidation Preference of such shares.

	(b)	Redemption by Holders. Each Holder may, at any time on twenty (20) days prior written notice to the Corporation and under the conditions set forth below, redeem some or all of its shares of Series A Preferred at a price equal to the Liquidation Preference for such shares, under the following conditions:

	(i)	at any time that the Series A Redemption Amount is greater than zero, any Holder may request that the Corporation utilize the Series A Redemption Amount to redeem the shares of Series A Preferred Stock for which it requests redemption pursuant to this Section 6(b);

	(ii)	in the event less than all Holders of Series A Preferred Stock request redemption pursuant to Section 6(b)(i), then the Corporation shall promptly notify all other Holders that it has received a redemption request, and such other Holders shall have five (5) business days after receipt of such notice to request redemption of some or all of their Series A Preferred Stock;

	(iii)	the minimum number of shares of Series A Preferred Stock for which a Holder may request redemption, whether under Section 6(b)(i) or (ii), is the lesser of 10,000 shares or the number of shares held by the Holder;

	(iv)	if the Series A Redemption Amount is less than the amount necessary to fully redeem the Series A Preferred shares for which a redemption request has been received under this Section 6(b), then the Corporation shall utilize the Series A Redemption Amount to redeem a proportionate number of whole shares of each Holder requesting redemption pursuant to this Section 6(b) based on the total number of shares of Series A Preferred Stock for which redemption is requested pursuant to this Section 6(b), and any excess Series A Redemption Amount shall be retained by the Corporation;

	(v)	the term “Series A Redemption Amount” means 30% of the amount of Liquid Net Assets of the Corporation in excess of $2,000,000, determined on the date a Holder first requests redemption of its Series A Preferred Stock pursuant to Section 6(b)(i) herein;

	(vi)	the term “Liquid Net Assets” means the sum of all unencumbered cash, marketable securities, digital currency or available borrowing capacity under a line of credit, less any current liabilities for accounts payable or accrued liabilities;

	(vii)	notwithstanding anything else in this Section 6(b) to the contrary, payment of the Series A Redemption Amount shall not be required if the payment would violate the terms of any other agreement to which the Corporation is bound, including without limitation any representation, warranty or covenant contained in any agreement under which the Corporation has borrowed money or raised debt or equity capital.

	(c)	Redemption by Holders Upon a Default. Holders owning a majority of the outstanding shares of Series A Preferred Stock may, any time on thirty (30) days prior written notice to the Corporation, require that the Corporation redeem all shares of Series A Preferred at a price equal to the Liquidation Preference for such shares in the event the Corporation is in default under any representation, warranty or covenant made for the benefit of the Series A Preferred, and fails to cure such default within thirty (30) days after written notice from the Holders of a majority of the outstanding shares of Series A Preferred Stock, unless the default is of a nature that it cannot be cured, in which event the notice of default shall be effective on the date of receipt by the Corporation.

	(d)	Redemption in the Event of Fundamental Transaction.

	(i)	At least twenty (20) days prior to consummating in a Fundamental Transaction, the Corporation shall send each Holder of Series A Preferred Stock a notice of the proposed Fundamental Transaction (a “Fundamental Transaction Notice”). The Corporation shall also be entitled to send each Holder of Series A Preferred Stock a new Fundamental Transaction Notice at least twenty (20) days prior to consummation of a Fundamental Transaction in the event a material change occurs in the terms of a previously noticed Fundamental Transaction.

	(ii)	The Corporation shall be obligated to redeem all, and not less than all, shares of Series A Preferred Stock which are outstanding for the Liquidation Preference of such shares at the consummation of the Fundamental Transaction, provided that upon receipt of a Fundamental Transaction Notice, each Holder of Series A Preferred Stock shall be entitled to send the Corporation a conditional Notice of Conversion, under which the Holder’s shares of Series A Preferred Stock shall be converted into Common Stock pursuant to Section 5 herein immediately prior to the closing of the Fundamental Transaction, but shall not be converted in the event the proposed Fundamental Transactions is not consummated.

	(iii)	A “Fundamental Transaction” shall include any of the following: (x) the merger or consolidation of the Corporation into or with another corporation or entity, reorganization or sale of the Corporation, or sale of capital stock by the Corporation, in which the shareholders of the Corporation immediately preceding such merger, consolidation, or reorganization (solely by virtue of their shares or other securities of the Corporation) shall own less than fifty percent (50%) of the voting securities of the surviving corporation; (y) the sale, transfer or lease (but not including a permitted transfer or lease by pledge or mortgage to a bona fide lender), whether in a single transaction or pursuant to a series of related transactions or plan, of 50% or more of the assets of the Corporation, based on the fair market value of the Corporation’s assets as mutually determined by the Corporation and the Holders of at least a majority of the voting power of all then outstanding shares of the Series A Preferred Stock, which assets shall include for these purposes fifty percent (50%) or more of the outstanding voting capital stock of any subsidiaries of the Corporation, the assets of which constitute all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole; or (z) the sale, transfer or lease (but not including a permitted transfer or lease by pledge or mortgage to a bona fide lender), whether in a single transaction or pursuant to a series of related transactions, of all or substantially all of the assets of the subsidiaries of the Corporation, the assets of which constitute all or substantially all of the assets of the Corporation and such subsidiaries taken as a whole.

(e)

Payment of Redemption Amount. Any redemption by the Corporation shall be effective on the twentieth (20th) day after notice of redemption is sent by the Corporation to the Holder pursuant to Section 6(a) or a notice of redemption is sent by a Holder to the Corporation pursuant to Section 6(b), or the dates described in Sections 6(c) or 6(d) for a redemption thereunder (a “Redemption Date”). After the Redemption Date, all shares of Series A Preferred Stock that are redeemed shall no longer be considered issued and outstanding, and shall have no right to vote on any matter upon which shares would be entitled to vote if still issued and outstanding. Nothing shall prohibit any Holder from exercising any right to convert the Series A Preferred Stock into Common Stock between the date a notice of redemption is sent and the Redemption Date. On or before the date of a scheduled Redemption Date and in connection therewith, each holder of shares of Series A Preferred Stock shall surrender the certificate representing such shares to the Corporation and shall receive payment of the Redemption Price in cash on the Redemption Date. If less than all the shares represented by a surrendered certificate are redeemed, the Corporation shall issue a new certificate representing the unredeemed shares.

Section 7. Liquidation Rights.

	(a)	In the event of any liquidation, dissolution or winding up of the Corporation (a “Liquidation”), either voluntary or involuntary, the Holders of the Series A Preferred Stock shall, by reason of their ownership thereof, be entitled to receive, prior and in preference to any distribution of any of the assets of the Corporation to the holders of Common Stock and any other series of Preferred Stock an amount per share equal to the Liquidation Preference of the Series A Preferred Stock as of the record date for distribution, provided that the record date for the distribution may be no more than twenty (20) calendar days prior to the date of the distribution. If upon the occurrence of such event, the assets and funds thus distributed among the Holders of the Series A Preferred Stock shall be insufficient to permit the payment to such Holders of the full aforesaid preferential amounts, then the entire assets and funds of the Corporation legally available for distribution shall be distributed ratably among the Holders of the Series A Preferred Stock in proportion to the preferential amount each such Holder is otherwise entitled to receive.

	(b)	Upon the completion of the distribution required by subparagraph (a) of this Section 7, the remaining assets of the Corporation available for distribution to shareholders shall be distributed among the holders of any junior series of Preferred Stock, if any, and the Common Stock in accordance with the terms of such junior series of Preferred Stock.

Section 8. Protective Provisions.

(a)

Actions Requiring Majority Approval of Series A Preferred Stock. In addition to any other rights provided by law, so long as any shares of Series A Preferred Stock are then outstanding, except where the vote or written consent of the holders of a greater number of shares is required by law or by another provision of the Certificate of Incorporation, without first obtaining the affirmative vote or written consent of the holders of at least a majority of the total number of shares of the Series A Preferred Stock outstanding, voting as a separate class, the Corporation shall not:

	(i)	voluntarily or involuntarily liquidate, dissolve or wind up the Corporation or its business;

	(ii)	create or increase, or authorize the creation or increase of the authorized amount of any additional class or series of shares of stock, unless the same ranks junior to the Series A Preferred Stock as to dividends, redemption and the distribution of assets on the liquidation, dissolution or winding up of the Corporation, or create or authorize any obligation or security convertible into shares of Common Stock, Series A Preferred Stock or any other class or series of stock, whether voting or non-voting, unless an adequate number of shares have been reserved for the issuance of such shares of Common Stock, Series A Preferred Stock or other class or series of stock upon such conversion, regardless of whether any such creation, authorization or increase shall be by means of amendment to the Certificate of Incorporation, or by merger, consolidation or otherwise;

	(iii)	increase the size of the Corporation’s Board of Directors;

	(iv)	amend or repeal any provision of, or add any provision to, the Corporation’s Certificate of Incorporation or Bylaws, or file any articles of amendment designating the preferences, limitations and relative rights of any new series of Series A Preferred Stock, or engage in any other action, that would alter or change the preferences, rights, privileges or powers of, or restrictions provided for the benefit of the Series A Preferred Stock;

	(v)	increase or decrease the authorized number of shares of Common Stock or Series A Preferred Stock or any series thereof;

	(vi)	purchase, redeem or otherwise acquire for value any shares of any class of its capital stock, other than Common Stock purchased at the current market value from service providers of the Corporation upon termination of employment and other than the exercise by the Corporation of contractual rights of first refusal over such Common Stock;

	(vii)	merge or consolidate into or with any other corporation or sell, assign, lease, pledge, encumber or otherwise dispose (including by exclusive license or otherwise) of all or substantially all of its assets or those of any subsidiary;

	(viii)	pay or declare dividends on any capital stock other than the Series A Preferred Stock, unless the Series A Preferred Stock share ratably in such dividend and all accrued dividends payable with respect to the Series A Preferred Stock have been paid prior to the payment or declaration of such dividend;

	(ix)	create or hold capital stock in any subsidiary that is not a wholly-owned subsidiary or dispose of any subsidiary stock or all or substantially all of any subsidiary assets;

	(x)	create or commit the Corporation to enter into a joint venture, licensing agreement or exclusive marketing or other distribution agreement with respect to the Corporation’s products, other than in the ordinary course of business;

	(xi)	enter into, create, incur, assume, guarantee or suffer to exist any indebtedness of any kind for borrowed money of any kind (other than indebtedness to financial institutions) in excess of $1,000,000;

	(xii)	cease to engage in a business that is substantially similar to the business engaged in, or contemplated to be engaged in, as of the date of execution of this Certificate of Designation;

	(xiii)	amend the provisions of this Subsection 8(a).

	(b)	Information Rights of Major Investors. Any investor holding more than 25% of the Series A Preferred Stock (a “Major Investor”) will be granted access to Corporation facilities and personnel during normal business hours and with reasonable advance notification. The Corporation will deliver to each Major Investor (i) annual, quarterly and monthly financial statements, in each case prepared in accordance with generally accepted accounting principles as soon as practicable but not less than 120 days following the end of the fiscal year, 45 days following the end of a fiscal quarter and 15 days following the end of the month, respectively, and annual financial statements shall be audited by an independent nationally recognized accounting firm, provided that the Corporation shall satisfy its obligation to delivery annual and quarterly financial statements to the extent such financial statements are included in reports filed with the Securities and Exchange Commission (“SEC”) which are publicly available on its EDGAR system; (ii) 30 days prior to the end of each fiscal year, a comprehensive operating budget forecasting the Corporation’s revenues, expenses and cash position on a month to month basis for the upcoming fiscal year; and (iii) promptly following the end of each quarter, an up-to-date capitalization table. Furthermore, Major Investor(s) shall have the right to convene the Corporation’s management to no less than 3 meetings and per year, within reasonable bounds.

	(c)	Anti-Dilution Protection. In the event that the Corporation issues (i) shares of Common Stock at a purchase price less than the then current Conversion Price, (ii) debt or equity securities convertible into Common Stock at a conversion price less than the then current Conversion Price, (iii) options or warrants exercisable for Common Stock at an exercise price less than the then current Conversion Price, or (iv) options or warrants to purchase convertible debt or equity securities, where the combined exercise and conversion prices would enable the holder to acquire shares of Common Stock for less than the then current Conversion Price, then the Conversion Price shall be adjusted down to the lowest price at which the recipient of any such securities acquires or may be entitled to purchase Common Stock. For purposes of this adjustment, the issuance of any security carrying the right to convert such security directly or indirectly into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in an adjustment to the Conversion Price upon the issuance of the above-described security and again upon the issuance of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than the then applicable Conversion Price. Notwithstanding the foregoing, the following issuances (an “Exempt Issuance”) shall not trigger adjustment to the Conversion Price:

	(i)	Securities issuable upon conversion of any shares of Series A Preferred Stock;

	(ii)	Securities issued upon the conversion of any debenture, warrant, option, or other convertible security that is outstanding on the date of issuance of the Series A Preferred Stock;

	(iii)	Common Stock issuable upon a stock split, stock dividend, or any subdivision of shares of Common Stock that results in a proportionate adjustment to the Conversion Price;

	(iv)	Shares of Common Stock (or options or warrants to purchase such shares of Common Stock) issued or issuable to employees or directors of, or consultants to, the Corporation pursuant to any plan approved by the Corporation’s Board of Directors including at least one (1) Series A Director(s).

	(d)	Right to Participate in Future Fundings. All Holders of the Series A Preferred Stock shall have a pro rata right, based on their percentage ownership of the Common Stock, assuming the conversion of all outstanding Series A Preferred Stock into Common Stock (a “Pro Rata Share”), to participate in subsequent issuances of Junior Securities or any debt security convertible into a Junior Security, but excluding any Exempt Issuance (a “Future Offering”). Prior to issuing any security in a Future Offering, the Corporation shall first notify all Holders of Series A Preferred Stock of the Future Offering at least ten (10) business days prior to the consummation of the Future Offering, which notice must contain all offering documents provided to the purchasers in the Future Offering and all documents in substantially final form that the purchasers in the Future Offering will be required to execute to participate in the Future Offering (a “ROFR Notice”). Holders shall have five (5) business days after receipt of a ROFR Notice to elect in writing to purchase their Pro Rata Share of the Future Offering. To the extent that at least one Holder, but less than all Holders, elects to purchase its Pro Rata Share in the Future Offering, the Corporation shall immediately send a second notice to such electing Holders (a “Second ROFR Notice”), who shall have two (2) business days thereafter to elect in writing to purchase any Pro Rata Share that a different Holder elected not to purchase, provided that if the total amount that electing Holders request to purchase pursuant to a Second ROFR Notice exceeds the total amount offered pursuant to the Second ROFR Notice, then the amount offered pursuant to the Second ROFR Notice shall be apportioned between the electing Holders in proportion to the number of shares of Series A Preferred Stock held by each.

	(e)	Right to Injunctive Relief. The Corporation agrees that its breach of this Section 8 will result in irreparable harm to the Holders, and therefore the Holder shall be entitled to obtain injunctive relief against the Corporation to preclude any such transaction that would be in violation of this Section, for which the Corporation expressly waives any requirement that the Holder post bond, which remedy shall be in addition to all remedies available to it at law or in equity.

Section 9. Miscellaneous.

	(a)	Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, by e-mail or sent by a nationally recognized overnight courier service, addressed to the Corporation, at its principal executive offices, as reflected in the most recent report filed with the SEC pursuant to Section 13 or 15 of the Securities Exchange Act of 1934 or, if the Corporation is not then required to file reports pursuant to Sections 13 or 15 of the Securities Exchange Act of 1934, at its principal executive offices as reflected by its last annual report filed with the Delaware Secretary of State, or at such other address, facsimile number or electronic mail address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by e-mail, sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Corporation, or if no such e-mail address or address appears, at the principal place of business of the Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission (accompanied by confirmation of such transmission), if such notice or communication is delivered via e-mail at the e-mail address, as applicable, specified in this Section prior to 5:30 p.m. (Atlanta, Georgia time), (ii) the date after the date of transmission (accompanied by confirmation of such transmission), if such notice or communication is delivered via e-mail at the e-mail address, as applicable, specified in this Section later than 5:30 p.m. (Atlanta, Georgia time) on any date and earlier than 11:59 p.m. (Atlanta, Georgia time) on such date, (iii) the first business day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

	(b)	Lost or Mutilated Series A Preferred Stock Certificate. If a Holder’s Series A Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series A Preferred Stock so mutilated, lost, stolen or destroyed but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof, and indemnity, if requested, all reasonably satisfactory to the Corporation.

	(c)	Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of this Certificate of Designation (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in Delaware. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the Delaware courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or such Delaware courts are an improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

	(d)	Waiver. Any waiver by the Corporation or the Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation. The failure of the Corporation or the Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation. Any waiver must be in writing.

	(e)	Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates applicable laws governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum permitted rate of interest.

	(f)	Next Trading Day. Whenever any payment or other obligation hereunder shall be due on a day other than a business day, such payment shall be made on the next succeeding business day.

	(g)	Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.

	(h)	Status of Converted Series A Preferred Stock. In the event any shares of Series A Preferred Stock shall be converted pursuant to Section 5 hereof, the shares so converted shall be cancelled, and shall return to the status of authorized but unissued Preferred Stock of no designated series, and shall not be issuable by the Corporation as Series A Preferred Stock.

IN WITNESS WHEROF, the undersigned being a duly authorized officer of the Corporation, does file this Certificate of Designation, Rights and Preferences, hereby declaring and certifying that the facts stated herein are true and accordingly has hereunto set his hand this 31^st day of August, 2022.

BITMINE IMMERSION TECHNOLOGIES, INC.

By:
Name:		Jonathan Bates
Title:		Chief Executive Officer

EXHIBIT 1

FORM OF CONVERSION NOTICE

(To be executed by the registered holder in order to convert shares of Series A Preferred Stock)

The undersigned hereby irrevocably elects to convert the number of shares of Series A Convertible Series A Preferred Stock (the “Series A Preferred Stock”) indicated below into shares of common stock, par value $0.0001 per share (the “Common Stock”), of Bitmine Immersion Technologies, Inc., a Delaware corporation (the “Corporation”), according to the Certificate of Designations, Rights and Preferences of the Series A Preferred Stock and the conditions hereof, as of the date written below. The undersigned hereby requests that certificates for the shares of Common Stock to be issued to the undersigned. The undersigned will pay all transfer taxes and fees payable with respect thereto. A copy of the certificate representing the Series A Preferred Stock being converted is attached hereto, the original of which will be delivered to the Corporation promptly following the date hereof.

Date of Conversion (Date of Notice)

Number of shares of Series A Preferred Stock owned prior to Conversion

Number of shares of Series A Preferred Stock to be Converted

Stated Value of Series A Preferred Stock to be Converted

Amount of unpaid dividends (if any) on shares of Series A Preferred Stock to be Converted

Number of shares of Common Stock to be Issued (including conversion of unpaid dividends on shares of Series A Preferred Stock to be Converted)

Applicable Conversion Value

Number of shares of Series A Preferred Stock owned subsequent to Conversion

Conversion Information: [NAME OF HOLDER]


Address of Holder:


Name of Holder

By:
Name:
Title: