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):
May 4, 2015
BASTA HOLDINGS, CORP.
(Exact Name of Registrant as Specified in
Charter)
| Nevada |
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333-185572 |
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99-0367603 |
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(State or other jurisdiction
of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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1111 Kane Concourse
Suite 518
Bay Harbor Islands, FL |
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33154 |
| (Address of principal executive offices) |
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(Zip Code) |
Registrant’s telephone number, including
area code: (305) 867-1228
Copies to:
Thomas Rose, Esq.
Sichenzia Ross Friedman Ference LLP
61 Broadway, 32nd Floor
New York, New York 10006
Telephone: (212) 930-9700
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d 2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
FORWARD-LOOKING STATEMENTS
This Current Report on Form 8-K contains
forward-looking statements. Forward-looking statements include statements concerning plans, objectives, goals, strategies, future
events or performance, and underlying assumptions and other statements that are other than statements of historical facts. These
statements are subject to uncertainties and risks including, but not limited to (i) securing capital for general working purposes,
and (ii) other risks and in statements filed from time to time with the Securities and Exchange Commission (the “SEC”).
All such forward-looking statements, whether written or oral, and whether made by or on behalf of the Company, are expressly qualified
by the cautionary statements and any other cautionary statements which may accompany the forward-looking statements. In addition,
the Company disclaims any obligation to, and will not, update any forward-looking statements to reflect events or circumstances
after the date hereof.
| Item 3.02 | Unregistered Sales of Equity Securities. |
As previously disclosed on its Current
Report on Form 8-K dated April 13, 2015, the Company entered into a Financial Advisory Agreement with The Vantage Group, Ltd. on
March 12, 2015. Pursuant to the terms of that agreement, the Company issued The Vantage Group, Ltd. 10,000 shares of its Series
C Preferred Stock. The shares of Series C Preferred Stock issued to The Vantage Group, Ltd. were issued in reliance upon the exemption
provided by Section 4(a)(2) of the Securities Act of 1933, as amended.
| Item 4.01 | Changes in Registrant’s Certifying Accountant. |
Dismissal of Independent Registered Public Accounting Firm
The board
of directors (the “Board”) of Basta Holdings, Corp. (the “Company”) provided notice to Mallah,
Furman & Company (the “Former Auditor”) of its dismissal, effective April 1, 2015, as
the Company’s independent registered public accounting firm. The Former Auditor served
as the auditors of the Company’s financial statements from September 4, 2014 through April 1, 2015.
The report of the Former Auditor on the
Company’s consolidated financial statements for the period beginning September 4, 2014 and ended
October 31, 2014 did not contain any adverse opinion or a disclaimer of opinion and was not qualified or modified as to
uncertainty, audit scope or accounting principle, except that there was an explanatory paragraph describing conditions that raised
substantial doubt about the Company’s ability to continue as a going concern.
In
connection with the audit of the Company's consolidated financial statements for the period beginning September 4, 2014
and ended October 31, 2014,
and in the subsequent interim period preceding the Former Auditor’s dismissal, there were no disagreements with the Former
Auditor on any matters of accounting principles or practices, financial statement disclosure or auditing scope and procedures which,
if not resolved to the satisfaction of the Former Auditor, would have caused the Former Auditor to make reference to the matter
in their report. There were no reportable events (as that term is described in Item 304(a)(1)(v) of Regulation S-K) during the
period beginning September 4, 2014 and ended October 31, 2014,
or in the subsequent period prior to the Former Auditor’s dismissal, except that the Former Auditor advised the Company of
material weaknesses in internal control over financial reporting and expressed substantial
doubt about the Company’s ability to continue as a going concern.
The Company
has provided the Former Auditor with a copy of the foregoing disclosure, and requested that the Former Auditor furnish the Company
with a letter addressed to the Securities and Exchange Commission stating whether or not it agrees with such disclosure. A
copy of the letter from the Former Auditor addressed to the Securities and Exchange Commission dated as of April 28, 2015 is filed
as Exhibit 16.1 to this Form 8-K.
New Independent Registered Public Accounting Firm
On April 1, 2015, the Board recommended,
and the Board appointed RBSM, LLP (the “New Auditor”) as the Company’s independent registered public accounting
firm for the Company’s fiscal year ending October 31, 2015.
During the period
beginning September 4, 2014 and ended October 31, 2014, and
the subsequent interim period prior to the engagement of the New Auditor,
the Company has not consulted with the New Auditor with respect to the
application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that
would have been rendered on the Company’s consolidated financial statements, or any other matters set forth in Item 304(a)(2)(i)
or (ii) of Regulation S-K.
| Item 5.02 | Departure of Directors or Principal Officers; Election
of Directors; Appointment of Principal Officers. |
On April 1, 2015, the Board appointed Joseph
Hugh Avery, the Company’s Vice President of Operations, to the Board effective immediately.
There are no arrangements or understandings
between Mr. Avery and/or any other persons pursuant to which Mr. Avery was named as a director of the Company. Mr. Avery does not
have a family relationship with any of the Company's directors or executive officers or any persons nominated or chosen by the
Company to be a director or executive officer.
Other than as set forth herein, Mr. Avery
has no direct or indirect material interest in any transaction or proposed transaction required to be reported under Section 404(a)
of Regulation S-K or Item 5.02(d) of Form 8-K by virtue of his appointment to the Board.
Joseph Hugh Avery has over fifteen years of experience in corporate operations, sales inspection, training, policy and management. Mr. Avery has worked as Vice President
of Operations, training and business development for a 14 CFR Part 135 and 91K air carrier operating a fleet of Piaggo aircraft.
He has further experience as Vice President of Operations of Orion Air Group/Tempus Jets, Inc., responsible for managing operations,
programs, training and business development for 14 CFR Part 135 air carrier certificate and Part 91 managed aircraft.
Additional, Mr. Avery has worked as Director
of Operations for Presidential Airways managing operations, programs training and supervision for a $300 million dollar aviation
corporation with CARB certification.
Furthermore, Mr. Avery has worked as a
captain for Harrah's Entertainment where he was responsible for the oversight of all flight operations and as a chief pilot for
ACA/Independence Air. Moreover, Mr. Avery worked as a Specialist, E-4 for the U.S. Air Force and is a graduate of Averett College
in Danville, Virginia, where he acquired his Bachelor of Science in Aviation Management.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year. |
On April 1, 2015, the Board authorized
the designation of a new series of preferred stock out of its available preferred stock and authorized the issuance of up to 10,000
shares of Series C Preferred Stock. On April 16, 2015, the Company filed a Certificate of Designation for its Series C Preferred
Stock (the “Certificate of Designation”) with the Secretary of State of the State of Nevada. The shares of Series
C Preferred Stock entitle their holder to vote on an as-converted basis with the holders of the Company’s common stock at
the record date for the determination of shareholders entitled to vote on any matter coming before the common shareholders or,
if no such record date is established, at the date such vote is taken or any written consent of shareholders is solicited. The
Series C Preferred Stock has a stated value of $10.00 per share and is convertible into 9.99% of the Company’s issued and
outstanding shares of common stock, calculated on a fully diluted basis. The foregoing description does not purport to be complete
and is qualified in its entirety by reference to the complete text of the Certificate of Designation, which is attached hereto
as Exhibit 3.1 and incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. |
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Description |
| 3.1 |
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Certificate of Designation of Series C Preferred Stock |
| 16.1 |
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Letter from Mallah, Furman & Company dated April 28, 2015 |
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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 hereunto duly authorized.
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BASTA HOLDINGS, CORP. |
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| Date: May 4, 2015 |
By: |
/s/ Dr. Jacob Gitman, PhD. |
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Dr. Jacob Gitman, PhD. |
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Chief Executive Officer |
Exhibit 3.1
BASTA
HOLDINGS, CORP.
CERTIFICATE OF DESIGNATION
OF
PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES C CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 78.1955
OF THE NEVADA REVISED STATUTES
The undersigned, Dr.
Jacob Gitman, does hereby certify that:
1. He is the Chief
Executive Officer, Chief Financial Officer, President, Treasurer and Director of Basta Holdings, Corp., a Nevada corporation (the
“Corporation”).
2. The Corporation
is authorized to issue 5,000,000 shares of Series A Preferred Stock, $0.001 par value per share, none of which have been issued.
3. The Corporation
is authorized to issue 5,000,000 shares of Series B Convertible Preferred Stock, $0.001 par value per share, 37,500 shares of which
are issued and outstanding.
3. The following
resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS, the
amended and restated articles of incorporation (the “Articles”) of the Corporation provide for a class of its
authorized stock known as preferred stock, issuable from time to time in one or more series;
WHEREAS, the
Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms
of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting
any Series and the designation thereof, of any of them; and
WHEREAS, it
is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and
other matters relating to a series of the preferred stock, which shall consist of up to 10,000 shares of the preferred stock which
the Corporation has the authority to issue, as follows:
NOW, THEREFORE,
BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or
exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other
matters relating to such series of preferred stock as follows:
10,000 shares of the
authorized and unissued Preferred Stock of the Corporation are hereby designated “Series C Preferred Stock”
with the following rights, preferences, powers, privileges and restrictions, qualifications and limitations.
1.1 The Corporation
shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation unless
(in addition to the obtaining of any consents required elsewhere in the Articles) the holders of the Series C Preferred Stock then
outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series C Preferred Stock in
an amount at least equal to (i) in the case of a dividend on the Corporation’s common stock, $0.001 par value per share,
(the “Common Stock”) or any class or series that is convertible into Common Stock, that dividend per share of
Series C Preferred Stock as would equal the product of (A) the dividend payable on each share of such class or series determined,
if applicable, as if all shares of such class or series had been converted into Common Stock and (B) the number of shares of Common
Stock issuable upon conversion of a share of Series C Preferred Stock, in each case calculated on the record date for determination
of holders entitled to receive such dividend or (ii) in the case of a dividend on any class or series that is not convertible into
Common Stock, at a rate per share of Series C Preferred Stock determined by (A) dividing the amount of the dividend payable on
each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject
to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect
to such class or series) and (B) multiplying such fraction by an amount equal to the Series C Original Issue Price (as defined
below); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than
one class or series of capital stock of the Corporation, the dividend payable to the holders of Series C Preferred Stock pursuant
to this Section 1 shall be calculated based upon the dividend on the class or series of capital stock that would result
in the highest Series C Preferred Stock dividend. The “Series C Original Issue Price” shall mean $10.00 per
share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization
with respect to the Series C Preferred Stock.
| 2. | Liquidation, Dissolution or Winding Up; Certain
Mergers, Consolidations and Asset Sales. |
2.1
Preferential Payments to Holders of Series C Preferred Stock. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation or Triggering Event (as such term is hereinafter defined), the holders of shares of
Series C Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution
to its stockholders before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount
per share equal to three times (3x) the Series C Original Issue Price, plus any dividends declared but unpaid thereon. If upon
any such liquidation, dissolution or winding up of the Corporation or Triggering Event, the assets of the Corporation available
for distribution to its stockholders shall be insufficient to pay the holders of shares of Series C Preferred Stock the full amount
to which they shall be entitled under this Subsection 2.1, the holders of shares of Series C Preferred Stock shall
share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would
otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to
such shares were paid in full.
2.2
Distribution of Remaining Assets. In the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation or Triggering Event, after the payment of all preferential amounts required to be paid to the holders of
shares of Series C Preferred Stock the remaining assets of the Corporation available for distribution to its stockholders shall
be distributed among the holders of the shares of Series C Preferred Stock and Common Stock, pro rata based on the number of shares
held by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock pursuant
to the terms of the Articles immediately prior to such liquidation, dissolution or winding up of the Corporation. The aggregate
amount which a holder of a share of Series C Preferred Stock is entitled to receive under Subsections 2.1 and 2.2
is hereinafter referred to as the “Series C Liquidation Amount.”
2.3.1
Definition. Each of the following events shall be considered a “Triggering Event” unless the holders
of at least 100% of the outstanding shares of Series C Preferred Stock elect otherwise by written notice sent to the Corporation
at least 30 days prior to the effective date of any such event:
(a)
a merger or consolidation in which
(i)
the Corporation is a constituent party or
(ii)
a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to
such merger or consolidation, except any such merger or consolidation involving the Corporation or a subsidiary in which the shares
of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are
converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at
least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving
or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation,
the parent corporation of such surviving or resulting corporation; or
(b)
the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions,
by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries
taken as a whole, or the sale or disposition (whether by merger, consolidation or otherwise) of one or more subsidiaries of the
Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary
or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary
of the Corporation.
| 2.3.2 | Effecting a Triggering Event. |
(a)
The Corporation shall not have the power to effect a Triggering Event referred to in Subsection 2.3.1(a)(i) unless
the agreement or plan of merger or consolidation for such transaction (the “Transaction Agreement”) provides
that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of
the Corporation in accordance with Subsections 2.1 and 2.2.
(b)
In the event of a Triggering Event referred to in Subsection 2.3.1(a)(ii) or 2.3.1(b), if the Corporation
does not effect a dissolution of the Corporation under the Nevada Revised Statutes within ninety (90) days after such Triggering
Event, then (i) the Corporation shall send a written notice to each holder of Series C Preferred Stock no later than the ninetieth
(90th) day after the Triggering Event advising such holders of their right (and the requirements to be met to secure
such right) pursuant to the terms of the following clause; (ii) to require the redemption of such shares of Series C Preferred
Stock, and (iii) if the holders of at least 100% of the then outstanding shares of Series C Preferred Stock so request in a written
instrument delivered to the Corporation not later than one hundred twenty (120) days after such Triggering Event, the Corporation
shall use the consideration received by the Corporation for such Triggering Event (net of any retained liabilities associated with
the assets sold or technology licensed, as determined in good faith by the Board of Directors of the Corporation), together
with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Nevada
law governing distributions to stockholders (the “Available Proceeds”), on the one hundred fiftieth (150th)
day after such Triggering Event, to redeem all outstanding shares of Series C Preferred Stock at a price per share equal to the
Series C Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if
the Available Proceeds are not sufficient to redeem all outstanding shares of Series C Preferred Stock, the Corporation shall ratably
redeem each holder’s shares of Series C Preferred Stock to the fullest extent of such Available Proceeds, and shall redeem
the remaining shares as soon as it may lawfully do so under Nevada law governing distributions to stockholders. The provisions
of Section 6 shall apply, with such necessary changes in the details thereof as are necessitated by the context, to
the redemption of the Series C Preferred Stock pursuant to this Subsection 2.3.2(b). Prior to the distribution or redemption
provided for in this Subsection 2.3.2(b), the Corporation shall not expend or dissipate the consideration received for such
Triggering Event, except to discharge expenses incurred in connection with such Triggering Event or in the ordinary course of business.
Notwithstanding the foregoing, if a Triggering Event pursuant to Section 2.3.1(c) shall have occurred, payment to the holders of
the Series C Preferred Stock shall be made by the Corporation within five (5) business days of such event.
2.3.3
Amount Deemed Paid or Distributed. The amount deemed paid or distributed to the holders of capital stock of the Corporation
upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the
value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm
or other entity. The value of such property, rights or securities shall be determined in good faith by the Board of Directors of
the Corporation. Notwithstanding the foregoing, if a Triggering Event pursuant to Section 2.3.1(c) shall have occurred, the amount
deemed paid in any such event shall be the cash proceeds received by the Company.
2.3.4
Allocation of Escrow and Contingent Consideration. In the event of a Triggering Event pursuant to Subsection 2.3.1(a)(i),
if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies
(the “Additional Consideration”), the Transaction Agreement shall provide that (a) the portion of such consideration
that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the
holders of capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 as if the Initial Consideration
were the only consideration payable in connection with such Triggering Event; and (b) any Additional Consideration which becomes
payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of
capital stock of the Corporation in accordance with Subsections 2.1 and 2.2 after taking into account the previous
payment of the Initial Consideration as part of the same transaction. For the purposes of this Subsection 2.3.4, consideration
placed into escrow or retained as holdback to be available for satisfaction of indemnification or similar obligations in connection
with such Triggering Event shall be deemed to be Initial Consideration.
3.1
General. On any matter presented to the stockholders of the Corporation for their action or consideration at any
meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding
shares of Series C Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common
Stock into which the shares of Series C Preferred Stock held by such holder are convertible as of the record date for determining
stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of the Articles, holders of
Series C Preferred Stock shall vote together with the holders of Common Stock as a single class.
3.2
Series C Preferred Stock Protective Provisions. At any time when shares of Series C Preferred Stock are outstanding,
the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following
without (in addition to any other vote required by law or the Articles) the written consent or affirmative vote of the holders
of at least 50% of the then outstanding shares of Series C Preferred Stock, given in writing or by vote at a meeting, consenting
or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or
vote shall be null and void ab initio, and of no force or effect.
3.2.1
liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any merger or consolidation or any other
Triggering Event, or consent to any of the foregoing;
3.2.2
amend, alter or repeal any provision of the Articles or bylaws of the Corporation in a manner that could reasonably be expected
to adversely affect the powers, preferences or rights of the Series C Preferred Stock;
3.2.3
create, or authorize the creation of, any additional class or series of capital stock unless the same ranks junior to the
Series C Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation,
the payment of dividends and rights of redemption, or increase the authorized number of shares of Series C Preferred Stock or increase
the authorized number of shares of any additional class or series of capital stock unless the same ranks junior to the Series C
Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the
payment of dividends, voting rights, conversion rights and rights of redemption;
3.2.4
(i) reclassify, alter or amend any existing security of the Corporation that is pari passu with the Series C Preferred
Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of
dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to
the Series C Preferred Stock in respect of any such right, preference, or privilege or (ii) reclassify, alter or amend any existing
security of the Corporation that is junior to the Series C Preferred Stock in respect of the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration
or amendment would render such other security senior to or pari passu with the Series C Preferred Stock in respect of any
such right, preference or privilege;
3.2.5
purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution
on, any shares of capital stock of the Corporation other than (i) redemptions of or dividends or distributions on the Series C
Preferred Stock as expressly authorized herein, or (ii) repurchases of stock from former employees, officers, directors, consultants
or other persons who performed services for the Corporation or any subsidiary in connection with the cessation of such employment
or service at the lower of the original purchase price or the then-current fair market value thereof;
3.2.6
create, or authorize the creation of, or issue, or authorize the issuance of any debt security, or permit any subsidiary
to take any such action with respect to any debt security, if the aggregate indebtedness of the Corporation and its subsidiaries
for borrowed money following such action would exceed $25,000 other than equipment leases or bank lines of credit;
3.2.7
create, or hold capital stock in, any subsidiary that is not wholly owned (either directly or through one or more other
subsidiaries) by the Corporation, or sell, transfer or otherwise dispose of any capital stock of any direct or indirect subsidiary
of the Corporation, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise dispose
(in a single transaction or series of related transactions) of all or substantially all of the assets of such subsidiary.
The holders of the
Series C Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):
4.1.1
Conversion Ratio. Each share of Series C Preferred Stock shall be convertible, at the option of the holder thereof,
at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number
of fully paid and non-assessable shares of Common Stock as is determined by dividing the Series C Original Issue Price by the Series
C Conversion Price (as defined below) in effect at the time of conversion. The “Series C Conversion Price” shall
initially be equal to $0.269. Such initial Series C Conversion Price, and the rate at which shares of Series C Preferred Stock
may be converted into shares of Common Stock, shall be subject to adjustment as provided below.
4.1.2
Termination of Conversion Rights. In the event of a liquidation, dissolution or winding up of the Corporation or
a Triggering Event, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed
for the payment of any such amounts distributable on such event to the holders of Series C Preferred Stock.
4.2
Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series C Preferred
Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to
such fraction multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board of Directors
of the Corporation. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of
the total number of shares of Series C Preferred Stock the holder is at the time converting into Common Stock and the aggregate
number of shares of Common Stock issuable upon such conversion.
4.3
Mechanics of Conversion.
4.3.1
Notice of Conversion. In order for a holder of Series C Preferred Stock to voluntarily convert shares of Series C
Preferred Stock into shares of Common Stock, such holder shall (a) provide written notice in the form attached hereto as Exhibit
A to the Corporation’s transfer agent at the office of the transfer agent for the Series C Preferred Stock (or at the
principal office of the Corporation if the Corporation serves as its own transfer agent) that such holder elects to convert all
or any number of such holder’s shares of Series C Preferred Stock and, if applicable, any event on which such conversion
is contingent and (b), if such holder’s shares are certificated, surrender the certificate or certificates for such shares
of Series C Preferred Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a
lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim
that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office
of the transfer agent for the Series C Preferred Stock (or at the principal office of the Corporation if the Corporation serves
as its own transfer agent). Such notice shall state such holder’s name or the names of the nominees in which such holder
wishes the shares of Common Stock to be issued. If required by the Corporation, any certificates surrendered for conversion shall
be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed
by the registered holder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt by
the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of such notice and, if applicable,
certificates (or lost certificate affidavit and agreement) shall be the time of conversion (the “Conversion Time”),
and the shares of Common Stock issuable upon conversion of the specified shares shall be deemed to be outstanding of record as
of such date. The Corporation shall, as soon as practicable after the Conversion Time (i) issue and deliver to such holder of Series
C Preferred Stock, or to his, her or its nominees, a notice of issuance of uncertificated shares and may, upon written request,
issue and deliver a certificate for the number of full shares of Common Stock issuable upon such conversion in accordance with
the provisions hereof and, may, if applicable and upon written request, issue and deliver a certificate for the number (if any)
of the shares of Series C Preferred Stock represented by any surrendered certificate that were not converted into Common Stock,
(ii) pay in cash such amount as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise
issuable upon such conversion and (iii) pay all declared but unpaid dividends on the shares of Series C Preferred Stock converted.
4.3.2
Reservation of Shares. The Corporation shall at all times when the Series C Preferred Stock shall be outstanding,
reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the
Series C Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Series C Preferred 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 the Series C Preferred Stock,
the Corporation shall 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 purposes, including, without limitation, engaging in best efforts to obtain
the requisite stockholder approval of any necessary amendment to the Articles. Before taking any action which would cause an adjustment
reducing the Series C Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Series
C Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order
that the Corporation may validly and legally issue fully paid and non-assessable shares of Common Stock at such adjusted Series
C Conversion Price.
4.3.3
Effect of Conversion. All shares of Series C Preferred Stock which shall have been surrendered for conversion as
herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease
and terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange
therefor, to receive payment in lieu of any fraction of a share otherwise issuable upon such conversion as provided in Subsection 4.2
and to receive payment of any dividends declared but unpaid thereon. Any shares of Series C Preferred Stock so converted shall
be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate
action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series C Preferred
Stock accordingly.
4.3.4
No Further Adjustment. Upon any such conversion, no adjustment to the Series C Conversion Price shall be made for
any declared but unpaid dividends on the Series C Preferred Stock surrendered for conversion or on the Common Stock delivered upon
conversion.
4.3.5
Taxes. The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any
issuance or delivery of shares of Common Stock upon conversion of shares of Series C Preferred Stock pursuant to this Section 4.
The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series C Preferred Stock so converted
were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance
has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax
has been paid.
4.4
Adjustments to Series C Conversion Price for Diluting Issues.
4.4.1
Special Definitions. For purposes of this Section 4, the following definitions shall apply:
(a)
“Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common
Stock or Convertible Securities.
(b)
“Series C Original Issue Date” shall mean the date on which the first share of Series C Preferred Stock
was issued.
(c)
“Convertible Securities” shall mean any evidences of indebtedness, shares or other securities directly
or indirectly convertible into or exchangeable for Common Stock, but excluding Options.
(d)
“Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Subsection 4.4.3
below, deemed to be issued) by the Corporation after the Series C Original Issue Date, other than (1) the following shares of Common
Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and
(2), collectively, “Exempted Securities”):
(i)
shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on Series C Preferred Stock;
(ii)
shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other
distribution on shares of Common Stock that is covered by Subsection 4.5, 4.6, 4.7 or 4.8;
(iii)
shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or
any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of the Corporation and
the holders of no less than 50% of the shares of Series C Preferred Stock;
(iv)
shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock
actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the
terms of such Option or Convertible Security.
4.4.2
No Adjustment of Series C Conversion Price. No adjustment in the Series C Conversion Price shall be made as the result
of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the holders
of at least 100% of the then outstanding shares of Series C Preferred Stock agreeing that no such adjustment shall be made as the
result of the issuance or deemed issuance of such Additional Shares of Common Stock.
4.4.3
Deemed Issue of Additional Shares of Common Stock.
(a)
If the Corporation at any time or from time to time after the Series C Original Issue Date shall issue any Options or Convertible
Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for
the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the
maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions
to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment
of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the
time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.
(b)
If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Series C Conversion
Price pursuant to the terms of Subsection 4.4.4, are revised as a result of an amendment to such terms or any other adjustment
pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to
anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease
in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible
Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or
exchange, then, effective upon such increase or decrease becoming effective, the Series C Conversion Price computed upon the original
issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted
to such Series C Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance
of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (b) shall have
the effect of increasing the Series C Conversion Price to an amount which exceeds the lower of (i) the Series C Conversion Price
in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security,
or (ii) the Series C Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than
deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between
the original adjustment date and such readjustment date.
(c)
If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted
Securities), the issuance of which did not result in an adjustment to the Series C Conversion Price pursuant to the terms of Subsection
4.4.4 (either because the consideration per share (determined pursuant to Subsection 4.4.5) of the Additional Shares
of Common Stock subject thereto was equal to or greater than the Series C Conversion Price then in effect, or because such Option
or Convertible Security was issued before the Series C Original Issue Date), are revised after the Series C Original Issue Date
as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security
(but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible
Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion
or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Corporation upon
such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional
Shares of Common Stock subject thereto (determined in the manner provided in Subsection 4.4.3(a) shall be deemed to have
been issued effective upon such increase or decrease becoming effective.
(d)
Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion
thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Series C Conversion
Price pursuant to the terms of Subsection 4.4.4, the Series C Conversion Price shall be readjusted to such Series C
Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.
(e)
If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible
Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the
time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment
to the Series C Conversion Price provided for in this Subsection 4.4.3 shall be effected at the time of such issuance
or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments
(and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this Subsection 4.4.3). If the
number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security,
or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at
the time such Option or Convertible Security is issued or amended, any adjustment to the Series C Conversion Price that would result
under the terms of this Subsection 4.4.3 at the time of such issuance or amendment shall instead be effected at the
time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming
for purposes of calculating such adjustment to the Series C Conversion Price that such issuance or amendment took place at the
time such calculation can first be made.
4.4.4
Adjustment of Series C Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event the Corporation
shall at any time after the Series C Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of
Common Stock deemed to be issued pursuant to Subsection 4.4.3), without consideration or for a consideration per share
less than the Series C Conversion Price in effect immediately prior to such issue, then the Series C Conversion Price shall be
reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance
with the following formula:
CP2
= CP1* (A + B) ÷ (A + C).
For purposes of the foregoing formula,
the following definitions shall apply:
(a)
“CP2” shall mean the Series C Conversion Price in effect immediately after such issue of Additional
Shares of Common Stock
(b)
“CP1” shall mean the Series C Conversion Price in effect immediately prior to such issue of Additional
Shares of Common Stock;
(c)
“A” shall mean the number of shares of Common Stock outstanding immediately prior to such issue of Additional
Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding
immediately prior to such issue or upon conversion or exchange of Convertible Securities (including the Series C Preferred Stock)
outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);
(d)
“B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of
Common Stock had been issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received
by the Corporation in respect of such issue by CP1); and
(e)
“C” shall mean the number of such Additional Shares of Common Stock issued in such transaction.
4.4.5
Determination of Consideration. For purposes of this Subsection 4.4, the consideration received by the Corporation
for the issue of any Additional Shares of Common Stock shall be computed as follows:
(a)
Cash and Property: Such consideration shall:
(i)
insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts
paid or payable for accrued interest;
(ii)
insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue,
as determined in good faith by the Board of Directors of the Corporation; and
(iii)
in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses
(i) and (ii) above, as determined in good faith by the Board of Directors of the Corporation.
(b)
Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares
of Common Stock deemed to have been issued pursuant to Subsection 4.4.3, relating to Options and Convertible Securities,
shall be determined by dividing:
(i)
The total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the
exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities,
by
(ii)
the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities.
4.4.6
Multiple Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Common
Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Series
C Conversion Price pursuant to the terms of Subsection 4.4.4 then, upon the final such issuance, the Series C Conversion
Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and
without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).
4.5
Adjustment for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the
Series C Original Issue Date effect a subdivision of the outstanding Common Stock, the Series C Conversion Price in effect immediately
before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion
of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock
outstanding. If the Corporation shall at any time or from time to time after the Series C Original Issue Date combine the outstanding
shares of Common Stock, the Series C Conversion Price in effect immediately before the combination shall be proportionately increased
so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion
to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become
effective at the close of business on the date the subdivision or combination becomes effective.
4.6
Adjustment for Certain Dividends and Distributions. In the event the Corporation at any time or from time to time
after the Series C Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and
in each such event the Series C Conversion Price in effect immediately before such event shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying
the Series C Conversion Price then in effect by a fraction:
(1)
the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date, and
(2)
the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment
of such dividend or distribution.
Notwithstanding the foregoing (a) if such
record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed
therefor, the Series C Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter
the Series C Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends
or distributions; and (b) that no such adjustment shall be made if the holders of Series C Preferred Stock simultaneously receive
a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would
have received if all outstanding shares of Series C Preferred Stock had been converted into Common Stock on the date of such event.
4.7
Adjustments for Other Dividends and Distributions. In the event the Corporation at any time or from time to time
after the Series C Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a distribution of shares
of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section 1
do not apply to such dividend or distribution, then and in each such event the holders of Series C Preferred Stock shall receive,
simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other
property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares
of Series C Preferred Stock had been converted into Common Stock on the date of such event.
4.8
Adjustment for Merger or Reorganization, etc. Subject to the provisions of Subsection 2.3, if there shall
occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common
Stock (but not the Series C Preferred Stock) is converted into or exchanged for securities, cash or other property (other than
a transaction covered by Subsections 4.4, 4.6 or 4.7), then, following any such reorganization, recapitalization,
reclassification, consolidation or merger, each share of Series C Preferred Stock shall thereafter be convertible in lieu of the
Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which
a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of Series C Preferred
Stock immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled
to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board of
Directors of the Corporation) shall be made in the application of the provisions in this Section 4 with respect to the rights
and interests thereafter of the holders of the Series C Preferred Stock, to the end that the provisions set forth in this Section
4 (including provisions with respect to changes in and other adjustments of the Series C Conversion Price) shall thereafter
be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the
conversion of the Series C Preferred Stock.
4.9
Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series C Conversion
Price pursuant to this Section 4, the Corporation at its expense shall, as promptly as reasonably practicable but in any
event not later than ten (10) days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of Series C Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property into which the Series C Preferred Stock is convertible) and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable after
the written request at any time of any holder of Series C Preferred Stock (but in any event not later than ten (10) days thereafter),
furnish or cause to be furnished to such holder a certificate setting forth (i) the Series C Conversion Price then in effect, and
(ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received
upon the conversion of Series C Preferred Stock.
4.10
Notice of Record Date. In the event:
(a)
the Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time
issuable upon conversion of the Series C Preferred Stock) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other
securities, or to receive any other security; or
(b)
of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Triggering
Event; or
(c)
of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,
then, and in each such case, the Corporation
will send or cause to be sent to the holders of the Series C Preferred Stock a notice specifying, as the case may be, (i) the record
date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the
effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up
is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other
capital stock or securities at the time issuable upon the conversion of the Series C Preferred Stock) shall be entitled to exchange
their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share
and character of such exchange applicable to the Series C Preferred Stock and the Common Stock. Such notice shall be sent at least
ten (10) days prior to the record date or effective date for the event specified in such notice.
5.
Acquired Shares. Any shares of Series C Preferred Stock that are acquired by the Corporation or any of its subsidiaries
shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred.
6.
Waiver. Any of the rights, powers, preferences and other terms of the Series C Preferred Stock set forth herein may
be waived on behalf of all holders of Series C Preferred Stock by the affirmative written consent or vote of the holders of at
least 100% of the shares of Series C Preferred Stock then outstanding.
7.
Notices. Any notice required or permitted by the provisions of this Certificate of Designations to be given to a
holder of shares of Series C Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records
of the Corporation, or given by electronic communication in compliance with the provisions of the Nevada Revised Statutes, and
shall be deemed sent upon such mailing or electronic transmission.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be signed by its duly authorized officer
on April 10, 2015.
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BASTA HOLDINGS, CORP. |
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By: |
/s/ Jacob Gitman |
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Name: Jacob Gitman, |
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Chief Executive Officer and Director |
Exhibit A
FORM OF CONVERSION NOTICE
The undersigned owner
of this Series C Convertible Preferred Stock (the “Series C Preferred Stock”) issued by Basta Holdings, Corp.
(the “Corporation”) hereby irrevocably exercises its option to convert __________ shares of the Series C Preferred
Stock into shares of the common stock, par value $0.001 per share (“Common Stock”), of the Corporation in accordance
with the terms of the Corporation’s Series C Convertible Certificate of Designation (the “Certificate of Designation”).
The undersigned hereby instructs the Corporation to convert the number of shares of the Series C Preferred Stock specified above
into shares of Common Stock issued at conversion in accordance with the provisions of Article 4 of the Certificate of Designation.
The undersigned directs that the Common Stock issuable and certificates therefor deliverable upon conversion and the recertificated
Series C Preferred Stock, if any, not being surrendered for conversion hereby, together with any check in payment for fractional
Common Stock, be issued in the name of and delivered to the undersigned unless a different name has been indicated below. All capitalized
terms used and not defined herein have the respective meanings assigned to them in the Certificate of Designation. So long as the
Series C Preferred Stock shall have been surrendered for conversion hereby, the conversion pursuant hereto shall be deemed to have
been effected at the date and time specified below, and at such time the rights of the undersigned as a Holder of the Series C
Preferred Stock shall cease and the Person or Persons in whose name or names the Common Stock issued at conversion shall be issuable
shall be deemed to have become the holder or holders of record of the Common Shares represented thereby and all voting and other
rights associated with the beneficial ownership of such Common Shares shall at such time vest with such Person or Persons.
Date and time: _____________________________
__________________________________________
Signature
Please print name and address (including
zip code number):
__________________________________________
__________________________________________
__________________________________________
Exhibit 16.1
April 28, 2015
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Ladies and Gentlemen:
We have read Item 4.01 of Form 8-K dated
April 28, 2015, of Basta Holdings, Corp. and are in agreement with the statements contained in paragraphs two and three on page
one therein. We have no basis to agree or disagree with other statements of the registrant contained therein.
/s/ Mallah Furman
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