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 10, 2015
Attitude Drinks Incorporated
(Exact name of registrant as specified in
its charter)
| Delaware |
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(000-52904) |
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65-0109088 |
| (State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Number) |
712 U.S. Highway 1, Suite 200, North Palm
Beach, Florida 33408
(Address of principal executive offices)
(Zip Code)
Telephone number: (561) 227-2727
N/A
(Former name or former address, if changed
since last report.)
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
(see General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
On July 31, 2015, Attitude Drinks
Incorporated (the “Company”) filed a Corrected Restated Certificate of Incorporation with the Secretary of State
of the State of Delaware to correct a Restated Certificate of Incorporation that was filed on November 2, 2007 and
erroneously omitted the rights, preferences and terms of the Series A Preferred Stock. The Company corrected the Certificate
in order to include the Certificate of Designations, Powers Preferences and Rights of the Series A Preferred Stock of the
Company. The State of Delaware processed and authenticated the Corrected Restated of Certificate of Incorporation on August
10, 2015.
The foregoing summary of the Corrected Restated
of Certificate of Incorporation does not purport to be complete and is qualified in its entirety by reference to the full text
of the Corrected Restated Certificate of Incorporation , a copy of which is filed as an Exhibit 3.1 to this Current Report on Form
8-K and is incorporated herein by reference.
On July 31, 2015, the Company amended its
Certificate of Designations, Powers, Preferences and Rights of its Series A Convertible Preferred Stock to provide that out of
the Company’s Twenty Million (20,000,000) shares of $.00001 par value authorized preferred stock (the “Preferred Stock”),
Fourteen Million Nine Hundred Ninety Nine Thousand and Nine Hundred Forty Nine (14,999,949) shares shall be designated as shares
of “Series A,” and Fifty-One (51) shares shall be designated as shares of “Series A-1.” The State of Delaware
processed and authenticated the Certificate of Designations, Powers, Preferences and Rights of Series A-1 Convertible Preferred
Stock on August 10, 2015.
The foregoing summary of the Certificate
of Designations, Powers, Preferences and Rights of Series A-1 Convertible Preferred Stock does not purport to be complete and is
qualified in its entirety by reference to the full text of such document, a copy of which is filed as Exhibit 3.2 to this Current
Report on Form 8-K and is incorporated herein by reference.
On July 31, 2015, the Company filed a Certificate
of Designations, Preferences and Rights of Series C Convertible Preferred Stock with the State of Delaware to provide that out
of the Twenty Million (20,000,000) authorized shares of the Company’s Preferred Stock, 100,000 shares shall be designated
as “Series C Convertible Preferred Stock.” The State of Delaware processed and authenticated the Certificate of Designations,
Preferences and Rights of Series C Convertible Preferred Stock on August 10, 2015.
The foregoing summary of the Certificate
of Designations, Preferences and Rights of Series C Convertible Preferred Stock does not purport to be complete and is qualified
in its entirety by reference to the full text of such document, a copy of which is filed as an Exhibit 3.3 to this Current Report
on Form 8-K and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. |
Description |
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| 3.1 |
Corrected Restated Certificate of Incorporation of Attitude Drinks Incorporated |
| 3.2 |
Certificate of Amendment to the Certificate of Designations, Powers, Preferences and Rights of Series A Convertible Preferred Stock of Attitude Drinks Incorporated |
| 3.3 |
Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of Attitude Drinks Incorporated |
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.
Date: August 12, 2015
ATTITUDE DRINKS INCORPORATED
By: /s/ Roy G. Warren
Name: Roy G. Warren
Title: Chief Executive Officer
Exhibit
3.1
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:35 PM 07/31/2015
FILED 01:35 PM 07/31/2015
SRV 151120002 – 2160417 FILE
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CORRECTED
RESTATED CERTIFICATE OF INCORPORATION
OF
ATTITUDE DRINKS INCORPORATED
Attitude Drinks Incorporated
(the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the
State of Delaware, does hereby certify as follows:
1. On November 2, 2007, the Corporation
filed a Restated Certificate of Incorporation (the “Restated Certificate”) with the secretary of State of Delaware
and such Restated Certificate did not accurately reflect the corporate action taken with respect thereto. Said Restated Certificate
requires correction as permitted by subsection (f) of Section 103 of the General Corporation Law of the State of Delaware.
2. The inaccuracy
or defect of said Restated Certificate to be corrected is as follows: The Certificate of Designation, Preferences and Rights of
the Series A Preferred Stock of Attitude Drinks Incorporated that should have been part of the Restated Certificate was not included
in the Restated Certificate.
3. The text of the
Restated Certificate is hereby corrected to read in its entirety is attached to this page.
IN WITNESS WHEREOF,
said corporation has caused this Corrected Restated Certificate of Incorporation to be signed by its authorized officer this 31st
day of July, 2015.
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ATTITUDE DRINKS, INC. |
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By: |
/s/ Tommy Kee |
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Name: Tommy Kee |
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Title: Chief Financial Officer |
RESTATED CERTIFICATE OF INCORPORATION
OF
ATTITUDE DRINKS INCORPORATED
* * * * * *
ATTITUDE DRINKS INCORPORATED, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is ATTITUDE DRINKS INCORPORATED.
The date of filing of its original Certificate of Incorporation with the Secretary of State was on May 10, 1988 under the name
L.H.M. Corp.
2. This Restated Certificate of Incorporation only restates
and integrates and does not further amend the provisions of the Certificate of Incorporation of this corporation as heretofore
amended or supplemented and there is no discrepancy between those provisions and the provisions of this Restated Certificate of
Incorporation.
3. The text of the Certificate of Incorporation as amended
or supplemented heretofore is hereby restated without further amendments or changes to read as herein set forth in full:
FIRST: The name of the Corporation is ATTITUDE DRINKS INCORPORATED.
SECOND: The address of its registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, 19805, County of New Castle; and the registered agent of the Corporation in the
State of Delaware at such address is Corporation Service Company.
THIRD: The nature of the business or purposes to be conducted
or promoted by the Corporation is: To engage in any lawful act or activity for which Corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total authorized capital stock which the Corporation
shall have authority to issue is: One Hundred Twenty Million (120,000,000) of which stock One Hundred Million (100,000,000) shares
of the par value of $.001 each shall be common stock and of which Twenty Million (20,000,000) shares of the par value of $.001
each shall be preferred stock. Further, the board of directors of this Corporation, by resolution only and without further action
or approval, may cause the Corporation to issue one or more classes or one or more series of preferred stock within any class
thereof and which classes or series may have such voting powers, full or limited, or no voting powers, and 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 adopted by the board of directors, and to fix the number of
shares constituting any classes or series and to increase or decrease the number of shares of any such class or series.
SERIES A PREFERRED STOCK TERMS
RESOLVED, that there
be, and hereby is, created out of the class of 20,000,000 shares of serial preferred stock of the Corporation, par value $.001
per share, a series of preferred stock (the “Series A”) with the following designations, powers, preferences and relative,
participating, optional or other special rights, qualifications, limitations or restrictions (this instrument hereinafter referred
to as the “Designation”):
Common Stock. The term
“Common Stock” shall mean all shares now or hereafter authorized of any class of Common Stock of the Company and any
other stock of the Company, howsoever designated, authorized after the Issue Date, which has the right (subject always to prior
rights of any class or series of Preferred Stock) to participate in the distribution of the assets and earnings of the Company
without limit as to per share amount.
Issue Date. The term “Issue
Date” shall mean the date that shares of Series A are first issued by the Company.
Junior Stock. The term
“Junior Stock” shall mean, for purposes of these resolutions, any class or series of stock of the Company authorized
after the Issue Date not entitled to receive any dividends in any dividend period unless any dividends required to have been paid
or declared and set apart for payment on the Series A shall have been so paid or declared and set apart for payment and, for purposes
of these resolutions, shall mean Common Stock and any other class or series of stock of the Company authorized after the Issue
Date not entitled to receive any assets upon liquidation, dissolution or winding up of the affairs of the Company until the Series
A shall have received the entire amount to which such stock is entitled upon such liquidation, dissolution or winding up.
Parity Stock. The term
“Parity Stock” shall mean, for purposes of these resolutions the Common Stock and any other class or series of stock
of the Company authorized after the Issue Date entitled to receive payment of dividends subject only to those preferential rights
of dividends granted to the Series A and, for purposes of these resolutions, shall mean any class or series of stock of the Company
authorized after the Issue Date entitled to receive assets upon liquidation, dissolution or winding up of the affairs of the Company
subject to only those preferential rights and preference granted to the Series A.
Senior Stock. The term
“Senior Stock” shall mean, for purposes of these resolutions, any class or series of stock of the Company authorized
before the Issue Date of the Series A except for those preferential rights as granted herein but the right to receive dividends
providing all dividends granted to the Series A shall have been paid or set aside to be paid, and, for purposes of these resolutions,
shall mean any class or series of stock of the Company authorized after the Issue Date ranking equal to the Series A and the right
to participate in any distribution upon liquidation, dissolution or winding up of the affairs of the Company except for those preferential
rights granted to the Series A herein.
| 2. |
Rights, Powers, and Preferences |
The Series A shall
have the voting powers, preferences and relative, participating, optional and other special rights, qualifications, limitations
and restrictions as follows:
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A. |
Designation and Amount. Out of the Twenty Million (20,000,000) shares of the $.001 par value authorized preferred stock, Two Million (2,000,000) shares shall be designated as shares of “Series A.” |
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B. |
Rank. The Series A shall be senior to the Common Stock and any other series or class of the Company’s Preferred Stock. |
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C. |
Liquidation Rights. |
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In the event of any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary, the holders of the Series A then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its shareholders, before any payment or declaration and setting apart for payment of any amount shall be made in respect of any outstanding capital stock of the Company, an amount equal to ($.001) per share, plus the Redemption provision (as defined below). Then all of the assets of the Company available to be distributed shall be distributed ratably to the holders of the Series A and then to the holders of other outstanding shares of capital stock of the Company. If upon any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary, the assets to be distributed to the holders of the Series A shall be insufficient to permit the payment to the holders thereof the full preferential amount as provided herein, then such available assets shall be distributed ratably to the holders of the Series A. |
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None
of the following events shall be treated as or deemed to be a liquidation hereunder:
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(a) |
A merger, consolidation or reorganization
of the Company;
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(b) |
A sale
or other transfer of all or substantially all of the Company’s assets;
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(c) |
A sale of
50% or more of the Company’s capital stock then issued and outstanding; |
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(d) |
A purchase
or redemption by the Company of stock of any class; or |
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(e) |
Payment
of a dividend or distribution from funds legally available therefor.
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D. |
Voting Rights. In all matters the Series A shall have the same voting rights as the Common Stock on a six to one (6:1) basis. If the Company effects a stock split which either increases or decreases the number of shares of Common Stock outstanding and entitled to vote, the voting rights of the Series A shall not be subject to adjustment unless specifically authorized. |
3.
Dividends
The holders of the
Series A shall be entitled to receive Common Stock dividends when, as, if and in the amount declared by the directors of the Company
to be paid in cash or in Market Value of the Company’s common stock.
Without prior written
consent of the majority of the holders of Series A, so long as any shares of Series A shall be outstanding, the Company shall not
declare or pay on any Junior Stock any dividend whatsoever, whether in cash, property or otherwise, nor shall the Company make
any distribution on any Junior Stock, nor shall any Junior Stock be purchased or redeemed by the Company or any of its subsidiaries
of which it owns not less than 51% of the outstanding voting stock, nor shall any monies be paid or made available for a sinking
fund for the purchase or redemption of any Junior Stock, unless all dividends to which the holders of Series A shall have been
entitled for all previous dividend periods, if any, shall have been paid or declared and a sum of money sufficient for the payment
thereof and the Redemption Price (as hereinafter defined) is set apart.
The Series A shall
have the following conversion rights (the “Conversion Rights”):
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A. |
Holder’s Optional Right to Convert. Each share of Series A shall be convertible, at the option of the holder(s), on the Conversion Basis (as set forth below) in effect at the time of conversion. Such right to convert shall commence as of the Issue Date and shall continue thereafter for a period of five years, such period ending on the fifth anniversary of the Issue Date. In the event that the holder(s) of the Series A elect to convert such shares into Common Stock, the holder(s) shall have sixty (60) days from the date of such notice in which to tender their shares of Series A to the Company. |
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B. |
Conversion Basis. Each share of Series A shall be convertible into six (6) shares of the Company’s Common Stock. |
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C. |
Mechanics of Conversion. Before any holder of Series A shall be entitled to convert the same into shares of Common Stock, such holder shall (i) give written notice to the Company, at the office of the Company or of its transfer agent for the Common Stock or the Preferred Stock, that he elects to convert the same and shall state therein the number of shares of Series A being converted; and (ii) surrender the certificate or certificates therefor, duly endorsed. Thereupon the Company shall promptly issue and deliver to such holder of Series A a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled. The conversion shall be deemed to have been made and the resulting shares of Common Stock shall be deemed to have been issued immediately prior to the close of business on the date of such notice and surrender of the shares of Series A. |
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D. |
Adjustments to the Conversion Basis. |
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(i) |
Stock Splits and Combinations. The Series A shall
not be adjusted pursuant to any subdivision or combination of the Common Stock. |
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(ii) |
Reclassification, Exchange or Substitution. At any time after the Company first issues the Series A and while any of the shares of Series A remain outstanding, if the Common Stock issuable upon the conversion of the Series A shall be changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than a subdivision or combination of shares or stock dividend provided for above, or a reorganization, merger, consolidation, or sale of assets), then and in each such event the holder of each share of Series A shall have the right thereafter to convert such shares into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification, or other change, by holders of the number of shares of Common Stock into which such shares of Series A might have been converted immediately prior to such reorganization, reclassification, or change, all subject to further adjustments as provided herein. |
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(iii) |
Reorganization, Mergers, Consolidations or Sales of Assets. At any time after the Company first issues the Series A and while any of such shares remain outstanding, if there shall be a capital reorganization of the Common Stock (other than a subdivision, combination, reclassification, or exchange of shares), or a merger or consolidation of the Company with or into another Company, or the sale of all or substantially all of the Company’s assets to any other person, then as a part of such reorganization, merger, consolidation, or sale, provision shall be made so that the holders of the Series A thereafter shall be entitled to receive upon conversion of the Series A, the number of shares of stock or other securities or property of the Company, or of the successor Company resulting from such merger or consolidation or sale, to which a holder of Series A deliverable upon conversion would have been entitled on such capital reorganization, merger, consolidation, or sale. |
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E. Notices of Record Date. In the event of any reclassification or recapitalization of the capital stock of the Company, any merger or consolidation of the Company, or any transfer of all or substantially all of the assets of the Company to any other Company, entity, or person, or any voluntary or involuntary dissolution, liquidating, or winding up of the Company, the Company shall mail to each holder of Series A at least 30 days prior to the record date specified therein, a notice specifying the date on which any such reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation, or winding up is expected to become effective, and the time, if any is to be fixed, as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation, or winding up. |
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F. Fractional Shares. No
fractional shares of Common Stock shall be issued upon conversion of the Series A. In lieu of any fractional shares to which
the holder would otherwise be entitled, the Company shall pay cash equal to the product of such fraction multiplied by the
fair market value of one share of the Company’s Common Stock on the date of conversion, as determined in good faith
by the Company’s directors. |
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G. Reservation of Stock Issuable Upon Conversion. The Company shall reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series A, a number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series A. |
5.
Protective Provisions
Notwithstanding anything
contained herein to the contrary, so long as any of the Series A shall be outstanding, the Company shall not without first obtaining
the approval (by vote or written consent, as provided by law) of the holders of at least two-thirds of the total number of shares
of Series A outstanding:
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A. |
Alter or change the rights, preferences or privileges of the Series A by way of reclassification, merger, consolidation or otherwise, so as to adversely affect in any manner the voting rights including number of votes presently allowed or the conversion basis by which the shares of Series A are presently converted into shares of Common Stock. |
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B. |
Increase the authorized number of share of Series A. |
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C. |
Create any new class of shares having preferences over or being on a parity with the Series A as to dividends or assets, unless the purpose of creation of such class is, and the proceeds to be derived from the sale and issuance thereof are to be used for, the retirement of all Series A then outstanding. |
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D. |
Repurchase any of the Company’s Common Stock. |
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E. |
Merge or consolidate with any other Company, except into or with a wholly-owned subsidiary of the Company with the requisite shareholder approval. |
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F. |
Sell, convey or otherwise dispose of, or create or incur any mortgage, lien, charge or encumbrance on or security interest in or pledge of, or sell and leaseback, all or substantially all of the property or business of the Company. |
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Incur, assume or guarantee any indebtedness (other than such as may be represented by the obligation to pay rent under leases) maturing more than 18 months after the date on which it is incurred, assumed or guaranteed by the Company, except purchase money obligations, obligations assumed as part of the price of property purchased, or the extension, renewal or refunding of any thereof. |
6.
Redemption
Subject to the applicable
provisions of Delaware law, the Company, at the option of its directors, may at any time or from time to time redeem the whole
or any part of the outstanding Series A. Upon redemption the Company shall pay for each share redeemed the amount of $2.00 per
share, payable in cash, plus a premium to compensate the original purchaser(s) for the investment risk and cost of capital equal
to the greater of (a) $2.00 per share, or (b) an amount per share equal to fifty percent (50%) of the market capitalization of
the Company on the date of notice of such redemption divided by 2,000,000 (the “Redemption Premium”), the redemption
amount and the Redemption Premium hereinafter being referred to as the “Redemption Price.” Such redemption shall be
on an all-or-nothing basis.
At least thirty (30)
days previous notice by mail, postage prepaid, shall be given to the holders of record of the Series A to be redeemed, such notice
to be addressed to each such shareholder at the address of such holder appearing on the books of the Company or given to such holder
to the Company for the purpose of notice, or if no such address appears or is given, at the place where the principal office of
the Company is located. Such notice shall state the date fixed for redemption and the redemption price, and shall call upon the
holder to surrender to the Company on said date at the place designated in the notice such holder’s certificate or certificates
representing the shares to be redeemed. On or after the date fixed for redemption and stated in such notice, each holder of Series
A called for redemption shall surrender the certificate evidencing such shares to the Company at the place designated in such notice
and shall thereupon be entitled to receive payment of the redemption price. If less than all the shares represented by any such
surrendered certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. If such notice of redemption
shall have been duly given, and if on the date fixed for redemption funds necessary for the redemption shall be available therefore,
notwithstanding that the certificates evidencing any Series A called for redemption shall not have been surrendered, the dividends
with respect to the shares so called for redemption shall forthwith after such date cease and determine, except only the right
of the holders to receive the redemption price without interest upon surrender of their certificates therefore.
If, on or prior to
any date fixed for redemption or Series A, the Company deposits, with any bank or trust company as a trust fund, the number of
shares of Common Stock of a sum sufficient to redeem, on the date fixed for redemption thereof, the shares called for redemption,
with irrevocable instructions and authority to the bank or trust company to give the notice of redemption thereof (or to complete
the giving of such notice if theretofore commenced) and to pay, or deliver, on or after the date fixed for redemption or prior
thereto, the redemption price of the shares to their respective holders upon the surrender of their share certificates, then from
and after the date of the deposit (although prior to the date fixed for redemption), the shares so called shall be redeemed and
any dividends on those shares shall cease to accrue after the date fixed for redemption. The deposit shall constitute full payment
of the shares to their holders and from and after the date of the deposit the shares shall no longer be outstanding and the holders
thereof shall cease to be shareholders with respect to such shares, and shall have no rights with respect thereto except the right
to receive from the bank or trust company payment of the redemption price of the shares without interest, upon the surrender of
their certificates therefore. Any interest accrued on any funds so deposited shall be the property of, and paid to, the Company.
If the holders of Series A so called for redemption shall not, at the end of six years from the date fixed for redemption thereof,
have claimed any funds so deposited, such bank or trust company shall thereupon pay over to the Company such unclaimed funds, and
such bank or trust company shall thereafter be relieved of all responsibility in respect thereof to such holders and such holders
shall look only to the Company for payment of the redemption price.
7.
Reissuance
No share or shares
of Series A acquired by the Company by reason of conversion or otherwise shall be reissued as Series A, and all such shares thereafter
shall be returned to the status of undesignated and unissued shares of Preferred Stock of the Company.
8.
Headings or Subdivisions
The heading of the
various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions
hereto.
9. Severability of Provisions
If any right, preference
or limitation of the Series A set forth in this resolution (as such resolution may be amended from time to time) is invalid, unlawful
or incapable of being enforced by reason of any rule of law or public policy, all other rights, preferences and limitations set
forth in this resolution (as so amended) which can be given effect without the invalid, unlawful or unenforceable right, preference
or limitation shall, nevertheless, remain in full force and effect, and no right, preference or limitation herein set forth shall
be deemed dependent upon any other such right, preference or limitation unless so expressed herein.
10.
Status of Reacquired Stock
Shares of Series A
which have been issued and reacquired in any manner shall, upon compliance with any applicable provisions of Delaware law, have
the status of authorized and unissued shares of Preferred Stock may be redesignated and reissued in any series or class.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The directors shall have power to make and to alter or
amend the By-Laws; to fix the amount to be reserved as working capital, and to authorize and cause to be executed mortgages and
liens without limit as to the amount, upon the property and franchises of this Corporation.
With the consent in writing, and pursuant to a vote of the holders
of a majority of the Common Stock issued and outstanding, the directors shall have authority to dispose, in any manner, of the
whole property of this Corporation. The By-Laws shall determine whether and to what extent the accounts and books of this Corporation,
or any of them, shall be open to the inspection of the stockholders; and no stockholder shall have any right of inspecting any
account, or book, or document of this Corporation, except as conferred by Law of the By-Laws, or by resolution of the stockholders.
The stockholders and directors shall have power to hold their
meetings and keep the books, documents and papers of the Corporation outside the State of Delaware, at such places as may be from
time to time designated by the By-Laws or by resolution of the stockholders or directors, except as otherwise required by the laws
of Delaware.
It is the intention that the objects, purposes and powers specified
in the third paragraph hereof shall, except where otherwise specified in said paragraph, be in no way limited or restricted by
reference to or inference from the terms of any other clause or paragraph in this Certificate of Incorporation, but that the objects,
purposes and powers specified in the paragraph “THIRD” and in each of the clauses or paragraphs of this charter shall
be regarded as independent objects, purposes and powers.
SEVENTH: Meetings of stockholders may be held within or without
the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained
in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors
or in the By-Laws of the Corporation. Elections of directors need not be by written ballot unless the By-Laws of the Corporation
shall so provide.
EIGHTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute,
and all rights conferred upon stockholders, directors or any other person herein are granted subject to this reservation.
NINTH: No director of the Corporation shall be personally liable
to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent permitted by the amended Delaware General Corporation
Law. Any repeal or modification of this Article by the stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal
or modification.
TENTH: The Corporation shall have the power to merge and consolidated
with any Corporation or Corporations in such manner as may be permitted by law.
ELEVENTH: The Corporation elects not to be governed by Section
203 of the Delaware General Corporation Law.
4. This Restated Certificate of Incorporation was duly
adopted by the Board of Directors in accordance with Section 245 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, ATTITUDE DRINKS INCORPORATED has caused
this Certificate to be signed by Roy G. Warren, its President, this 29th day of October, 2007.
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By: |
/s/ Roy G. Warren |
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Name: |
Roy G. Warren |
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Title: |
President |
EXHIBIT 3.2
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:35 PM 07/31/2015
FILED 01:36 PM 07/31/2015
SRV 151120013 – 2160417 FILE
|
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF DESIGNATIONS, POWERS,
PREFERENCES
AND RIGHTS OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
ATTITUDE DRINKS INCORPORATED
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
The undersigned, for the purpose of amending
the Certificate of Designations, Powers, Preferences, and Rights of Series A Convertible Preferred Stock of Attitude Drinks Incorporated
(the “Corporation”), filed with the Secretary of State of the State of Delaware on or about June 2, 2006 and
subsequently amended on September 18, 2009 and January 9, 2013 (the “Certificate of Designations”), pursuant
to Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY CERTIFY,
as follows:
FIRST: That the Certificate of Designations is hereby amended
such that Section 2(A) of article fourth of the restated certificate of incorporation is hereby deleted in its entirety and the
following shall be substituted in lieu thereof:
| 2. |
Rights, Powers, and Preferences |
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The Series A shall have the voting powers, preferences and relative, participating, optional and other special rights, qualifications, limitations and restrictions as follows: |
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| A. |
Designation
and Amount. Out of the Twenty Million (20,000,000) shares of the $.00001 par value authorized preferred stock,
Fourteen Million Nine Hundred Ninety Nine Thousand Nine Hundred Forty Nine (14,999,949) shares shall be designated as shares
of “Series A,” and Fifty One (51) shares shall be designated as shares of “Series A-1.” The
term “Series A” as used herein shall include the term “Series A-1” except in this Section 2.A. and
Section 2.D. |
SECOND: That the foregoing amendment was
duly authorized by the Board of Directors of the Corporation and by the written consent of the stockholders of the corporation
in accordance with the provisions of Sections 228 and 242 of the DGCL.
IN WITNESS WHEREOF,
Attitude Drinks Incorporated has caused this Certificate of Amendment to the Certificate of Designations, Powers, Preferences,
and Rights of Series A Convertible Preferred Stock to be duly executed this 7th day of August, 2015.
ATTITUDE DRINKS INCORPORATED
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| By: |
 |
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| Name: Roy G. Warren |
| Title: Chief Executive Officer |
Exhibit
3.3
| |
State of Delaware
Secretary of State
Division of Corporations
Delivered 01:35 PM 07/31/2015
FILED 01:37 PM 07/31/2015
SRV 151120026 – 2160417 FILE
|
ATTITUDE
DRINKS INCORPORATED
CERTIFICATE
OF DESIGNATIONS, PREFERENCES, AND RIGHTS OF
SERIES
C CONVERTIBLE PREFERRED STOCK
Pursuant
to Section 151 of the General Corporation Law of the State of Delaware
The
undersigned, as a person duly authorized to execute this Certificate of Designations, Preferences, and Rights (this “Certificate”)
for and on behalf of ATTITUDE DRINKS INCORPORATED, a Delaware corporation (the “Corporation”), does hereby
certify that, pursuant to the authority conferred upon the Board of Directors (the “Board” of the Corporation by Article
Fourth of the Corporation’s Certificate of Incorporation, and in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware (the “DGCL”), the Board has adopted the following resolution creating a series
of the Corporation’s Preferred Stock, par value $0.00001 per share (“Preferred Stock”), designated as Series
C Convertible Preferred Stock:
RESOLVED,
that a series of the class of authorized Preferred Stock, par value $0.00001 per share, to be known as “Series C Convertible
Preferred Stock” of the Corporation be hereby created, and that the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows (all capitalized terms not otherwise defined herein shall have the meanings
set forth in Section 2 below):
1. Designation
and Amount; Par Value. Of the 20,000,000 authorized shares of Preferred Stock, par value $0.00001 per share of the Corporation,
100,000 shares shall be designated as “Series C Convertible Preferred Stock” (the “Series C Convertible Preferred
Stock”), provided, that, subject to the requirements of the DGCL and Section 7 hereof, the number of shares designated
as Series C Convertible Preferred Stock may be increased or decreased by the Board, provided further, that, no such
decrease shall reduce the number of such shares below the number then outstanding or reserved for issuance. The following is a
statement of the preferences, limitations, and relative rights of the Series C Convertible Preferred Stock.
2. Definitions.
Capitalized terms used herein and not otherwise defined shall have the following meanings:
“Annual
Dividend Amount” shall mean six percent (6%) percent of the Stated Value of a share of the Series C Convertible Preferred
Stock per annum.
“Asset
Sale” shall mean any sale or transfer of all or substantially all of the assets of the Corporation (measured either
by book value in accordance with generally accepted accounting principles consistently applied or by Fair Market Value) in any
transaction or series of transactions.
“Board”
shall have the meaning specified in the first paragraph of this Certificate.
“Business
Day” means any day other than a Saturday, Sunday or other day on which banks located in New York City are required or
authorized by law to close.
“Buy-In”
shall have the meaning given to it in Section 6(b)(ii).
“Certificate”
shall have the meaning specified in the first paragraph of this Certificate.
“Common
Stock” shall mean the common stock, par value $0.00001 per share, of the Corporation.
“Conversion”
shall have the meaning given it in Section 6(a).
“Conversion
Price” shall mean 50% discount to the lowest closing price for the previous 30 trading days, but in no event more than
$.0002, per share of Common Stock, as adjusted from time to time pursuant to Section 6.
“Corporation”
shall have the meaning set forth in the first paragraph of this Certificate.
“Delivery
Date” shall have the meaning set forth in Section 6(b)(ii).
“DGCL”
shall have the meaning set forth in the first paragraph of this Certificate.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Excluded
Stock” shall mean (i) the issuance or sale of options to purchase shares of Common Stock pursuant to a stock option
or equity incentive plan approved by the Board, or the issuance or sale of any shares of Common Stock upon the exercise of any
such options, (ii) shares of Common Stock issued upon conversion of shares of any of the Series C Convertible Preferred Stock,
(iii) securities issued in connection with any underwritten primary public offering of the Corporation’s securities pursuant
to a registration statement declared effective by the Securities and Exchange Commission, (iv) the issuance of securities pursuant
to the conversion or exercise of convertible or exercisable securities outstanding as of the date of this Certificate or the conversion
or exercise of the securities underlying convertible or exercisable securities outstanding as of the date of this Certificate
(as adjusted for recapitalizations, stock splits and the like), (v) the issuance of securities as consideration for a bona fide
business acquisition of or by the Corporation whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise,
which involves a third party which is not affiliated with the Corporation or its current stockholders or in a strategic alliance
or as equity kickers in lease and financing transactions, the primary purpose of which is not to raise equity capital; or (vi)
in the case of (i) through (v) any additional shares of Common Stock as may be issued by virtue of anti-dilution provisions, if
any, applicable to such options or securities.
“Fair
Market Value” as of any date of determination with respect to any shares of capital stock of the Corporation shall be
determined as follows: (i) the closing price for such shares for each day shall be the last reported sale price or, in case no
such reported sale takes place on such day, the average of the reported closing bid and asked prices, in either case on the principal
United States securities exchange registered under the Securities Exchange Act of 1934, as amended, on which such shares are listed
or admitted to trading, or (ii) if they are not listed or admitted to trading on any such exchange, the closing sale price (or
the average of the quoted closing bid and asked prices if no sale is reported) on such day as reported on the Nasdaq Stock Market,
or any comparable system, or (iii) if such shares are not quoted on the Nasdaq Stock Market or any comparable system, the average
of the closing bid and asked prices on such day as furnished by the principal market maker in such shares who is a member of the
National Association of Securities Dealers, Inc., or (iv) if there is no such market maker, then the value shall be reasonably
determined by the Board, but such price so determined shall not exceed $0.0001.
“Liquidation
Preference Payment” shall have the meaning set forth in Section 4(a).
“Original
Issue Date” means the first date shares of the Series C Convertible Preferred Stock are issued by the Corporation.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Redemption
Date” shall have the meaning set forth in Section 8(a).
“Redemption
Notice” shall have the meaning set forth in Section 8(a).
“Redemption
Triggering Event” shall mean (i) the institution against the Corporation of any proceedings under the United States
Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting
the rights of creditors generally, which proceeding is not dismissed within thirty (30) days of filing or (ii) the institution
by the Corporation of any proceedings under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization,
receivership, insolvency or other similar law affecting the rights of creditors generally or the making by the Corporation of
a composition or an assignment or trust mortgage for the benefit of auditors.
“Series
C Convertible Preferred Stock” shall have the meaning set forth in Section 1.
“Series
C Preferred Majority” shall mean, as of any date of determination, the holders of more than fifty one percent (51%),
in the aggregate, of the then outstanding shares of Series C Convertible Preferred Stock.
“Stated
Value” shall mean $1,000.00 per share, as adjusted for any combinations or splits with respect to the Series C Convertible
Preferred Stock shares that occur after the Original Issue Date.
“Written
Notice” means (a) notice, requests and other communications given by or to the Corporation in writing and (b) either:
(i) delivered by hand, (ii) made by telecopy or facsimile transmission, (iii) sent by overnight courier, (iv) delivered via electronic
mail or as an attachment to electronic mail, or (v) sent by registered mail, postage prepaid, return receipt requested. Written
Notices shall be deemed to have been given (i) by hand, at the time of delivery thereof to the receiving party (ii) if made by
telecopy or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service,
(iv) if sent by electronic mail, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise,
or (v) if sent by registered mail, on the third business day following the day such mailing is made.
3. Dividends.
(a)
Each holder of a share of Series C Convertible Preferred Stock shall be entitled to receive, when, as and if declared by the Board
out of funds of the Corporation legally available therefor, if applicable, the Annual Dividend Amount per share of Series C Convertible
Preferred Stock payable, at the option of the Corporation, (i) through the issuance of freely-tradable shares of Common Stock,
subject to the limitations set forth in Section 6(c) hereof, (ii) in cash, or (iii) in a combination thereof. Such dividends shall
be cumulative and shall accrue (whether or not earned or declared, whether or not there are funds legally available for the payment
thereof and whether or not restricted by the terms of any of the Corporation’s indebtedness outstanding at any time) from
the date such shares are issued by the Corporation and shall be payable semi-annually in arrears on January 1 and July 1 of each
year (each a “Dividend Payment Date”) commencing, January 1, 2016.
(b)
The dividend payment period for any dividend payable on a Dividend Payment date shall be the period beginning on the immediately
preceding Dividend Payment date (or on the issue date in the case of the first dividend payment period) and ending on the day
preceding such later Dividend Payment Date. If any date on which a payment of a dividend or any other amount is due in respect
of Series C Convertible Preferred Stock is not a Business Day, such payment shall be made on the next day that is a Business Day.
(c)
The amount of dividends payable per share of Series C Convertible Preferred Stock for each dividend payment period will be computed
by dividing the Annual Dividend Amount by two; provided, however, that the amount of dividends payable for the first dividend
payment period and for any dividend payment period shorter than a full semi-annual dividend period will be computed on the basis
of a 360-day year of twelve 30-day months. No fractional shares of Series C Convertible Preferred Stock will be issued, so that
the number of shares to be paid as a dividend shall be rounded to the nearest whole number of shares. All dividends paid in additional
shares of Series C Convertible Preferred stock shall be deemed issued on the applicable Dividend Payment Date and will thereupon
be duly authorized, validly issued, fully paid and non-assessable and free and clear of all liens, charges and other encumbrances.
(d)
Dividends payable on any Dividend Payment Date shall be payable to the holders of record of the Series C Convertible Preferred
Stock as they appear on the stock transfer books of the Corporation at the close of business on the fifteenth day of the calendar
month immediately preceding the calendar month in which the related Dividend Payment Date falls, or such other date that the Board
designates that is not more than 30 nor less than 10 days prior to the Dividend Payment Date. Dividends paid on the shares of
Series C Convertible Preferred Stock in an amount less than accumulated and unpaid dividends payable thereon shall be allocated
pro rata on a share-by-share basis among all such shares at the time outstanding.
(e) For
purposes of computing the number of shares of Common Stock required to pay a dividend, the amount determined under subparagraph
(c) above shall be divided by the Fair Market Value of a share of Common Stock.
4. Liquidation
Preference.
(a) In
the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, or in the event
of its insolvency, after payment to the holders of any series of preferred stock of the Company with a superior liquidation right,
each holder of Series C Convertible Preferred Stock shall be entitled to receive, prior to and in preference to any distribution
of any of the assets or surplus funds of the Corporation to the holders of Common Stock, by reason of their respective ownership
thereof, an amount equal to the aggregate Stated Value of all shares of Series C Convertible Preferred Stock held by such holder
(the “Liquidation Preference Payment”). If, upon the occurrence of such event, the assets and funds thus distributed
among the holders of the Series C Convertible Preferred Stock shall be insufficient to permit the payment in full to such holders
of the Liquidation Preference Payment, then the entire assets and funds of the Corporation legally available for distribution
shall be distributed to the holders of the Series C Convertible Preferred Stock in proportion to the preferential amount each
such holder is otherwise entitled to receive.
(b) After
payment has been made to the holders of the Series C Convertible Preferred Stock and any other class of preferred stock then outstanding
of the full amounts to which they shall be entitled as provided in Section 4(a), the entire remaining assets and funds of the
Corporation legally available for distribution, if any, shall be distributed among the holders of Common Stock.
(c) In
the event of any liquidation, dissolution or winding up of the Corporation, the Corporation shall, within 10 days after the date
the Board approves such action, or 10 days prior to any stockholders’ meeting called to approve such action, or 10 days
after the commencement of an involuntary proceeding, whichever is earlier, give each holder of the Series C Convertible Preferred
Stock Written Notice of the proposed action. Such Written Notice shall describe the material terms and conditions of such proposed
action, including a description of the stock, cash and property to be received by the holders of the Series C Convertible Preferred
Stock upon consummation of the proposed action and the date of delivery thereof. If any material change in the facts set forth
in the initial Written Notice shall occur, the Corporation shall promptly give Written Notice to each holder of Series C Convertible
Preferred Stock of such material change.
(d) If
an Asset Sale is proposed to occur, the Corporation shall give prompt Written Notice of such proposed Asset Sale describing in
reasonable detail the material terms and proposed date of consummation thereof to each holder of Series C Convertible Preferred
Stock, and the Corporation shall promptly give Written Notice to each holder of Series C Convertible Preferred Stock of any material
change in the facts set forth in the initial Written Notice. Upon the election of any holder of Shares of Series C Convertible
Preferred Stock delivered to the Corporation within 10 days after receipt of the Corporation’s Written Notice to the holders
of Series C Convertible Preferred Stock under this Section 4, any Asset Sale shall be deemed to be a liquidation, dissolution
and winding up of the Corporation for purposes of this Section 4, and such electing holder or holders of Series C Convertible
Preferred Stock shall be entitled to receive in connection therewith payment from the Corporation (or the successor or purchasing
entity) of the amounts payable with respect to the Series C Convertible Preferred Stock upon a liquidation, dissolution or winding
up of the Corporation under this Section 4 in cancellation of their shares upon the consummation of any such transaction.
5. Voting
Rights.
(a) General.
The Holder of shares of Series C Preferred Stock shall not have voting rights.
(b) Waivers.
Except to the extent otherwise provided in this Certificate or required by the DGCL, the Series C Preferred Majority may, via
affirmative vote or written consent in lieu thereof, consent to any amendment of this Certificate, which amendment may alter,
amend or otherwise waive any rights of the holders of the Series C Convertible Preferred Stock set forth in this Certificate.
6. Conversion.
(a) General.
Each share of Series C Convertible Preferred Stock, shall, at the option of each of the holders of the Series C Convertible Preferred
Stock, be converted into such number of fully paid and non-assessable shares of Common Stock determined by dividing the applicable
Stated Value and accrued dividends by the applicable Conversion Price then in effect (the “Conversion”).
(b) Mechanics
of Conversion.
(i) Holder
will give notice of its decision to exercise its right to convert its Preferred Stock, interest, or part thereof by emailing,
faxing or otherwise delivering a completed Notice of Conversion (a form of which is annexed hereto Exhibit A) to the Company.
Holder will not be required to surrender the Preferred Stock until the Preferred Stock has been fully converted. Each date on
which a Notice of Conversion is faxed to the Company in accordance with the provisions hereof by 6 PM Eastern Time (“ET”)
(or if received by the Company after 6 PM ET, then the next business day) shall be deemed a “Conversion Date.”
The Company will itself or cause the Company’s transfer agent to transmit the Company’s Common Stock certificates representing
the Conversion Shares issuable upon conversion of the Preferred Stock to Holder via express courier for receipt by Holder within
five (5) business days after the Conversion Date (such fifth day being the “Delivery Date”). In the event the
Conversion Shares are electronically transferable, then delivery of the Shares must be made by electronic transfer provided
request for such electronic transfer has been made by the Holder. A Preferred Stock Certificate representing the balance of the
Preferred Stock not so converted will be provided by the Company to Holder if requested by Holder, provided Holder delivers the
original Preferred Stock Certificate to the Company. Upon the conversion of a Preferred Stock or part thereof, the Company shall,
at its own cost and expense, take all necessary action, including obtaining and delivering an opinion of counsel to assure that
the Company’s transfer agent shall issue stock certificates in the name of a Holder (or its permitted nominee) or such other persons
as designated by Holder and in such denominations to be specified at conversion representing the number of shares of Common Stock
issuable upon such conversion. The Company warrants that no instructions other than these instructions have been or will be given
to the transfer agent of the Company’s Common Stock and that the certificates representing such shares shall contain no legend
other than the legend set forth in Section 4(h). If and when a Holder sells the Conversion Shares, assuming (i) a registration
statement including such Conversion Shares for registration has been filed with the Commission, is effective and the prospectus,
as supplemented or amended, contained therein is current and (ii) Holder or its agent confirms in writing to the transfer agent
that Holder has complied with the prospectus delivery requirements, the Company will reissue the Conversion Shares without restrictive
legend and the Conversion Shares will be free-trading, and freely transferable. In the event that the Conversion Shares are sold
in a manner that complies with an exemption from registration, the Company will promptly instruct its counsel to issue to the
transfer agent an opinion permitting removal of the legend indefinitely if such sale is intended to be made in conformity with
Rule 144(b)(1)(i) of the 1933 Act, provided that Holder delivers reasonably requested representations in support of such opinion.
(ii) In
addition to any other rights available to Holder, if the Company fails to deliver to a Holder Conversion Shares by the Delivery
Date and if after the Delivery Date Holder or a broker on Holder’s behalf purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by Holder of the Common Stock which Holder was entitled to receive
upon such conversion (a “Buy-In”), then the Company shall pay to Holder (in addition to any remedies available
to or elected by the Holder) the amount by which (A) Holder’s total purchase price (including brokerage commissions, if any) for
the shares of Common Stock so purchased exceeds (B) the aggregate principal and/or interest amount of the Preferred Stock for
which such conversion request was not timely honored together with interest thereon at a rate of 15% per annum, accruing until
such amount and any accrued interest thereon is paid in full (which amount shall be paid as liquidated damages and not as a penalty).
For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect
to an attempted conversion of $10,000 of Preferred Stock principal and/or interest, the Company shall be required to pay Holder
$1,000 plus interest. Holder shall provide the Company written notice and evidence indicating the amounts payable to Holder in
respect of the Buy-In.
(iii) The
Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 6 (b) hereof
later than the Delivery Date could result in economic loss to the Holder. As compensation to Holder for such loss, the Company
agrees to pay (as liquidated damages and not as a penalty) to each applicable Holder for late issuance of Conversion Shares in
the form required pursuant to Section 6 (b) hereof upon Conversion of the Preferred Stock, the amount of $100 per business day
after the Delivery Date for each $10,000 of Preferred Stock stated value and dividends (and proportionately for other amounts)
being converted of the corresponding Conversion Shares which are not timely delivered. The Company shall pay any payments incurred
under this Section upon demand. Furthermore, in addition to any other remedies which may be available to the Holder, in the event
that the Company fails for any reason to effect delivery of the Conversion Shares on or before the Delivery Date, the Holder will
be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a notice to such effect to the Company whereupon
the Company and Holder shall each be restored to their respective positions immediately prior to the delivery of such notice,
except that the damages payable in connection with the Company’s default shall be payable through the date notice of revocation
or rescission is given to the Company.
(c) Certain
Conversion Restrictions. Notwithstanding anything to the contrary contained herein, the number of shares of Common Stock that
may be acquired by a holder of Series C Convertible Preferred Stock upon any Conversion or dividend payment hereunder shall be
limited to the extent necessary to insure that, following such Conversion or dividend payment, as the case may be, the total number
of shares of Common Stock then beneficially owned by such holder and its affiliates and any other Persons whose beneficial ownership
of Common Stock would be aggregated with such holder’s for purposes of Section 13(d) of the Exchange Act, does not exceed
9.99% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock
issuable upon such conversion or dividend payment). For such purposes, beneficial ownership shall be determined in accordance
with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. This provision shall not restrict
the number of shares of Common Stock which a holder of Series C Convertible Preferred Stock may receive or beneficially own in
order to determine the amount of securities or other consideration that such holder may receive in the event of the occurrence
of any transaction described in Sections 6(d), (e) and (f). No holder of ay Series C Convertible Preferred Stock shall be deemed
a holder of the Company’s common stock as a result of such holder’s ownership of Series C Convertible Preferred Stock
until such holder converts such Series C Convertible Preferred Stock into shares of the Company’s common stock.
(d) Adjustments
for Subdivisions or Combinations of Common Stock. In the event the outstanding shares of Common Stock shall be subdivided
(by any subdivision, combination of shares or recapitalization, stock dividends, stock splits or otherwise) into a greater number
of shares of Common Stock, the Conversion Price then in effect for Series C Convertible Preferred Stock shall, concurrently with
the effectiveness of such subdivision, be proportionately decreased based on the ratio of (A) the total number of shares of Common
Stock outstanding immediately prior to such subdivision to (B) the total number of shares of Common Stock outstanding immediately
after such subdivision. In the event the outstanding shares of Common Stock shall be combined or consolidated by reclassification
or otherwise into a lesser number of shares of Common Stock, the Conversion Price then in effect for any series of Series C Convertible
Preferred Stock shall, concurrently with the effectiveness of such combination or consolidation, be proportionately increased
on the same basis.
(e) Adjustments
for Recapitalization, Reclassification, Exchange and Substitution. If at any time or from time to time the Common Stock issuable
upon conversion of the Series C Convertible Preferred Stock shall be changed into the same or a different number of shares of
any other class or classes of stock, whether by recapitalization, capital reorganization, reclassification or otherwise (other
than a subdivision or combination of shares provided for in Section 6(d) above or pursuant to a merger or sale of assets transaction
provided for in Section 6(f)), then, concurrently with the effectiveness of such recapitalization, reorganization or reclassification,
the shares of Series C Convertible Preferred Stock shall thereafter be convertible into, in lieu of the number of shares of Common
Stock which the holders thereof would have been entitled to receive prior to such recapitalization, reorganization or reclassification,
a number of shares of such other class or classes of stock equivalent to the number of shares of such other class or classes of
stock that a holder of the number of shares of Common Stock into which shares of the Series C Convertible Preferred Stock would
have been converted immediately before such recapitalization, reorganization or reclassification would have received in connection
with such recapitalization, reorganization or reclassification. In addition, to the extent applicable in any reorganization or
recapitalization, provision shall be made so that the holders of shares of the Series C Convertible Preferred Stock shall thereafter
be entitled to receive upon conversion of such shares the number of shares of stock or other securities or property of the Corporation
or otherwise, to which a holder of the number of shares of Common Stock deliverable upon conversion of shares of the Series C
Convertible Preferred Stock immediately prior to such recapitalization or reorganization would have been entitled on such reorganization
or recapitalization.
(f) Adjustments
for Merger or Asset Sale. At any time, in case of (i) any consolidation or merger of the Corporation with or into another
Corporation or corporations, or (ii) an Asset Sale (but not including a transfer or lease by pledge or mortgage to a bona fide
lender), each share of Series C Convertible Preferred Stock shall thereafter be convertible into the number of shares of stock
or other securities or property (including cash) to which a holder of the number of shares-of Common Stock deliverable upon conversion
of such share of Series C Convertible Preferred Stock would have been entitled upon the record date of (or date of, if no record
date is fixed) such consolidation, merger or Asset Sale, and, in any case, appropriate adjustment (as determined by the Board)
shall be made in the application of the provisions set forth herein with respect to the rights and interests thereafter of the
holders of the Series C Convertible Preferred Stock, with the result that the provisions set forth herein shall thereafter be
applicable, as nearly as equivalent as is practicable, in relation to any shares of stock or the securities or property (including
cash) thereafter deliverable upon the conversion of the shares of the Series C Convertible Preferred Stock.
(g) Certain
Anti-Dilution Adjustments. If the Corporation shall, at any time or from time to time after the date of issuance of the Series
C Convertible Preferred Stock, issue any shares of its capital stock, other than (i) issuances covered by Sections 6(d), (e) and
(f) above or (ii) Excluded Stock, without consideration or for a consideration per share less than the applicable Conversion Price,
then with respect to any such issuance, the applicable Conversion Price as in effect immediately prior to each such issuance shall
forthwith be lowered to a price equal to the issuance, conversion, exchange or exercise price, as applicable, of any such securities
so issued. Common Stock issued or issuable by the Company for no consideration or for consideration that cannot be determined
at the time of issue will be deemed issuable or to have been issued for $0.001 per share of Common Stock. For purposes of the
issuance and adjustments described in this paragraph, the issuance of any security of the Company carrying the right to convert
such security into shares of Common Stock or any warrant, right or option to purchase Common Stock shall result in the issuance
of the additional shares of Common Stock upon the sooner of the agreement to or actual issuance of such convertible security,
warrant, right or options and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such
conversion or purchase rights if such issuance is at a price lower than the Conversion Price in effect upon such issuance.
(h) No
Impairment. The Corporation shall not, by amendment of this Certificate, through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed under this Certificate by the Corporation, but shall at all times in good faith
assist in the carrying out of all the provisions of this Certificate and in the taking of all such action as may be necessary
or appropriate in order to protect the conversion and other rights of the holders of the Series C Convertible Preferred Stock
against impairment.
(i) No
Reissuance of Converted Shares. Upon conversion of any of the then outstanding shares of Series C Convertible Preferred Stock
pursuant to this Certificate, such converted shares of Series C Convertible Preferred Stock shall be cancelled and retired and
not be reissued, and the Corporation shall, from time to time, take such appropriate action as may be necessary to reduce the
authorized number of shares of Series C Convertible Preferred Stock as appropriate.
(j) Taxes.
The Corporation shall pay any and all issue, stamp and other taxes that may be payable in respect of any conversion of Series
C Convertible Preferred Stock pursuant to this Section 6(j). 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 any certificate of Common Stock in a name other
than the registered holder of the shares of Series C Convertible Preferred Stock so converted, and the Corporation shall not be
required to issue or deliver any such certificate of Common Stock unless and until the holder converting such Series C Convertible
Preferred Stock 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.
(k) Reservation
of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but
unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares the Series C Convertible Preferred
Stock which is convertible by its terms, such number of its shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of the Series C Convertible 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 Series C Convertible Preferred Stock which is convertible by its terms, the Corporation shall take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number
of shares as shall be sufficient for such purpose, including, without limitation, engaging in best efforts to obtain the requisite
stockholder approval of any necessary amendment to this Certificate.
(l) Fractional
Shares. No fractional shares shall be issued upon the conversion of any share or shares of Series C Convertible Preferred
Stock. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series C Convertible
Preferred Stock by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the
issuance of any-fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of a fraction
of a share of Common Stock, the Corporation shall, in lieu of issuing any fractional share, pay the holder otherwise entitled
to such fraction a sum in cash equal the Fair Market Value of such fraction on the date of conversion.
7. Covenants
of the Corporation. Unless otherwise waived in accordance with the provisions of this Certificate, the Corporation shall not,
without the written consent of a Series C Preferred Majority, authorize or issue any shares of capital stock of the Corporation
which would be senior or superior to or rank on parity with the Series C Convertible Preferred Stock as to liquidation preferences,
or create any obligation or security convertible into or exercisable or exchangeable for, or having rights to purchase, any such
capital stock. The Corporation shall give thirty (30) days prior Written Notice to all Holders of any transaction described in
this Section 7 for which consent of the Series C Preferred Majority is required; provided that any such thirty (30) day
period may be shortened or waived upon the written consent of the Series C Preferred Majority. The failure of a Series C Preferred
Majority to object in writing to the Corporation to such action within twenty (20) days of the date of such notice shall constitute
the written consent of such action by a Series C Preferred Majority under this Section 7.
8. Miscellaneous
a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Conversion, shall be in writing and delivered personally, by email to roy@attitudedrinks.com, facsimile
to (561) 799-5039,, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at: 712 U.S. Highway
1, Suite #200, North Palm Beach, Florida 33408, Attn: Roy Warren, Chief Executive Officer or such other email address, facsimile
number or street address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with
this Section 8. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be
in writing and delivered personally, by email, facsimile, or sent by a nationally recognized overnight courier service addressed
to each Holder at the email address, facsimile number or address of such Holder appearing on the books of the Corporation, or
if no such facsimile number or address appears on the books of the Corporation, at the principal place of business of such Holder.
Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date
of transmission, if such notice or communication is delivered via email to the email address set forth in this Section or by facsimile
to the facsimile number set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Business
Day after the date of transmission, if such notice or communication is delivered via email to the email address set forth in this
Section or via facsimile to the facsimile number set forth in this Section on a day that is not a Business Day or later than 5:30
p.m. (New York City time) on any Business Day, (iii) the second Business Day following the date of mailing, if sent by U.S. 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 Preferred Stock Certificate. If a Holder’s Series C Convertible 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 C Convertible 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 reasonably satisfactory to the Corporation.
c) Next Business 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.
d) Headings. The headings contained herein are for convenience only, do not constitute a part of these Articles of Incorporation
and shall not be deemed to limit or affect any of the provisions hereof.
e) 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 New York,
without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by any of the Transaction Documents (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 the City of New York, Borough of Manhattan (the “New York Courts”). Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement
of any of the Transaction Documents), 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 such New York Courts, or such New York Courts are 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 other manner permitted by applicable 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 any 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 in the investigation, preparation and prosecution of such action or proceeding.
f) Waiver. Any waiver by the Corporation or a 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 or a waiver by any other Holders. The failure of the Corporation or a 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 (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this
Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.
g) 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 the applicable law governing usury, the applicable rate of interest due hereunder shall
automatically be lowered to equal the maximum rate of interest permitted under applicable law.
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IN
WITNESS WHEREOF, said ATTITUDE DRINKS INCORPORATED has caused this Certificate of Designations, Preferences and Rights of Series
C Convertible Preferred Stock to be duly executed by its Chairman and CEO this 7th day of August, 2015.
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ATTITUDE DRINKS INCORPORATED |
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By: |
/s/ Roy G. Warren |
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Name: Roy G. Warren |
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Title: Chairman and CEO |
EXHIBIT
A
NOTICE
OF CONVERSION
(To
Be Executed By the Registered Holder in Order to Convert the Series C Convertible Preferred Stock of Attitude Drinks Incorporated)
The
undersigned hereby irrevocably elects to convert $______________ of the Stated Value of the above Series C Convertible Preferred
Stock into shares of Common Stock of Attitude Drinks Incorporated. (the “Corporation”) according to the conditions
hereof, as of the date written below.
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| Applicable Conversion Price Per Share: |
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| Number of Common Shares Issuable Upon This Conversion: |
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Select
one:
☐ A
Series C Convertible Preferred Stock certificate is being delivered herewith. The unconverted portion of such certificate should
be reissued and delivered to the undersigned.
☐ A
Series C Convertible Preferred Stock certificate is not being delivered to Attitude Drinks Incorporated.
Deliveries
Pursuant to this Notice of Conversion Should Be Made to: