SCHEDULE 14C INFORMATION STATEMENT
(Pursuant to Regulation 14C of the Securities Exchange
Act of 1934 as amended)
BITMINE IMMERSION TECHNOLOGIES, INC.
2030 Powers Ferry Road SE
Suite 212, Atlanta, Georgia 30339
WE ARE NOT ASKING FOR A PROXY AND
YOU ARE REQUESTED NO TO SEND US A PROXY.
Notice of Written Consent of Shareholders in
Lieu of
Special Meeting of Shareholders
This Information Statement is being furnished
by Bitmine Immersion Technologies, Inc., a Delaware Corporation (the “Company”),
to the holders of record (the “Stockholders”) of the outstanding common
stock, $0.0001 par value per share (the “Common Stock”) as of the close
of business on July 13, 2022 (the “Record Date”), pursuant to Rule 14c-2
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
This Information Statement relates to a written consent in lieu of a meeting, dated July 13, 2022 (the “Written Consent”)
of stockholders of the Company owning common shares that represent a majority of the outstanding votes of the capital stock of the Company
as of the Record Date (the “Consenting Stockholders”).
The Written Consent approved an Amended and Restated Certificate of
Incorporation (the “A&R COI”) for the Company, which makes a number of A&R COI to the Company’s
existing Certification of Incorporation (the “Current COI”), including without limitation:
| (a) | authorizing the issuance of 20,000,000 shares of preferred stock; |
| (b) | providing that special meetings of stockholders may be called by chairman of the board, the chief executive officer or by a majority
of the board; |
| | |
| (c) | providing that the liability of directors shall be limited to the maximum extent permitted by Delaware law; |
| | |
| (d) | providing that the Corporation is obligated to indemnify any director or officer for claims asserted against them arising of their
services to the Corporation, and to advance any expenses associated with any indemnification claim, subject to the indemnitees undertaking
to repay the advancement in the event it is later determined that the indemnitee was not entitled to indemnification; |
| | |
| (e) | providing that the Court of Chancery in the State of Delaware shall be the exclusive forum for any stockholder that brings a derivative
action on behalf of the Company, any claim for breach of fiduciary duty owed by any director, officers or employee of the Company, any
action asserting a breach of the A&R COI or Delaware corporate law, or any action asserting a claim governed by the internal affairs
doctrine; |
| | |
| (f) | providing that the Company’s stockholders shall not be entitled to cumulate votes for any election of directors; |
| | |
| (g) | providing that the amendment or repeal of the Company’s bylaws will require the approval of 75% of the shares of capital stock
entitled to vote at a meeting of stockholders, unless the amendment or repeal is recommended by the board of directors, which event the
threshold for approval shall be a majority of the capital stock entitled to vote at the meeting of stockholders; |
| | |
| (h) | providing that the amendment of certain provisions of the A&R COI will require the approval of at least 75% of the outstanding
shares of capital stock, and the amendment of the remaining provisions of the A&R COI will require the approval of at least 50% of
the outstanding shares of capital stock. |
A copy of the A&R COI is attached hereto as Exhibit A.
The Written Consent constitutes the consent
of a majority of the votes at any meeting of Stockholders, and is sufficient under the Delaware Corporation Law and the Company’s
Certificate of Incorporation to approve the A&R COI. Accordingly, the A&R COI is not presently being submitted to the Company’s
other stockholders for a vote. The action by Written Consent will become effective on the date of filing of the A&R COI with the Delaware
Secretary of State to effect the A&R COI (the “Effective Date”).
This is not a notice of a meeting of Stockholders and no Stockholders
meeting will be held to consider the matters described herein. This Information Statement is being furnished to you solely for the purpose
of informing Stockholders of the matters described herein pursuant to Section 14(c) of the Exchange Act and the regulations promulgated
thereunder, including Regulation 14C. Except as otherwise indicated by the context, references in this information statement to “Company,”
“we,” “us,” or “our” are references to Bitmine Immersion Technologies, Inc.
|
By Order of the Board of Directors,
/s/ Jonathan Bates
Jonathan Bates, Chief
Executive Officer
|
GENERAL INFORMATION
This Information Statement is being first mailed on or about July 13,
2022, to Stockholders of the Company by the Board of Directors to provide material information regarding corporate actions that have been
approved by the Written Consent of the Consenting Stockholders.
Only one Information Statement is being delivered to two or more Stockholders
who share an address unless we have received contrary instruction from one or more of such Stockholders. This practice known as “householding”
is intended to reduce the Company’s printing and postage costs. We will promptly deliver, upon written or oral request, a separate
copy of the Information Statement to a security holder at a shared address to which a single copy of the document was delivered. If you
would like to request additional copies of the Information Statement, or if in the future you would like to receive multiple copies of
information statements or proxy statements, or annual reports, or, if you are currently receiving multiple copies of these documents and
would, in the future, like to receive only a single copy, please so instruct us by writing to the corporate Chief Executive Officer at
the Company’s executive offices at the address specified above.
PLEASE NOTE THAT THIS IS NOT A REQUEST FOR YOUR
VOTE OR A PROXY STATEMENT, BUT RATHER AN INFORMATION STATEMENT DESIGNED TO INFORM YOU OF THE AMENDMENT OF OUR CERTIFICATE OF INCORPORATION.
The entire cost of furnishing this Information Statement will be borne
by the Company. We will request brokerage houses, nominees, custodians, fiduciaries and other like parties to forward this Information
Statement to the beneficial owners of the Common Stock held of record by them.
AUTHORIZATION BY THE BOARD OF DIRECTORS AND
THE CONSENTING STOCKHOLDERS
Under the Delaware General Corporation Law, any action that can be
taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice and without a vote, if the
holders of outstanding stock having not less than the minimum number of votes that will be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted consent to such action in writing. The approval
of the A&R COI requires the affirmative vote or written consent of a majority of the issued and outstanding shares of capital stock.
Each Common Stockholder is entitled to one vote per share of Common Stock held of record on any matter which may properly come before
the stockholders.
On the Record Date, we had 47,098,091 shares of Common Stock issued
and outstanding with the holders thereof being entitled to cast one vote per share.
On the Record Date, our board of directors (the “Board
of Directors”) unanimously adopted resolutions approving the A&R COI and recommended that the Stockholders approve the
A&R COI. In connection with the adoption of this resolution, the Board of Directors elected to seek the written consent of the holders
of a majority of our Stockholders in order to reduce associated costs and implement the proposals in a timely manner. Pursuant to Section
228 of the Delaware General Corporation Law (“DGCL”), the Consenting Stockholders voted in favor of the A&R COI
in a written consent dated July 13, 2022. The Consenting Stockholders are the record or beneficial owner of 25,055,000 shares of Common
Stock, which represented 53.2% of the total votes entitled to be case at any meeting of Stockholders. No consideration was paid for the
consents. The Consenting Stockholders names, affiliations with the Company and beneficial holdings are as follows:
Name of Beneficial Owner | |
Common Stock | | |
Percent | |
Innovative Digital Investors Emerging Technology, LP (1) | |
| 11,500,000 | | |
| 24.4% | |
BFAM Partners, LLC (1) | |
| 4,200,000 | | |
| 8.9% | |
Michael Maloney (2) | |
| 4,000,000 | | |
| 8.5% | |
Chris Moses (3) | |
| 2,100,000 | | |
| 4.5% | |
Raymond Mow (4) | |
| 1,250,000 | | |
| 2.7% | |
Seth Bayles (5) | |
| 500,000 | | |
| 1.1% | |
Coral Investment Partners, LP (6) | |
| 1,505,000 | | |
| 3.2% | |
Total | |
| 25,055,000 | | |
| 53.2% | |
| |
| | | |
| | |
| (1) | Controlled by Jonathan Bates, our Chairman and Chief Executive Officer. |
| (2) | Mr. Maloney is a director. |
| (3) | Mr. Moses is a Vice President. |
| (4) | Mr. Mow is a director and our Chief Executive Officer. |
| (5) | Mr. Bayles is a director and our Corporate Secretary. |
| (6) | Controlled by Erik S. Nelson, a director and our President. |
Accordingly, the Company has obtained all necessary corporate approvals
in connection with the A&R COI. The Company is not seeking written consent from any other Stockholders, and the other Stockholders
will not be given an opportunity to vote with respect to the actions described in this Information Statement. This Information Statement
is furnished solely for the purposes of advising Stockholders of the action taken by written consent and giving Stockholders notice of
such actions taken as required by the Exchange Act.
The Company will, when permissible following the expiration of the
20-day period mandated by Rule 14c-2 and the provisions of the Delaware General Corporation Law, file a A&R COI with the Delaware
Secretary of State’s Office to effect the A&R COI. The A&R COI will become effective upon such filing and we anticipate
that such filing will occur approximately 20 days after this Information Statement is first mailed to Stockholders.
DESCRIPTION OF THE COMPANY’S CAPITAL STOCK
The authorized capital stock of the Company consists of 500,000,000
shares of Common Stock, par value $0.0001 per share, of which 47,098,091 shares are issued and outstanding.
Holders of Common Stock are entitled to one vote for each share on
all matters submitted to a stockholder vote. Holders of Common Stock do not have cumulative voting rights. Holders of Common Stock are
entitled to share in all dividends that the Board of Directors, in its discretion, declares from legally available funds. In the event
of our liquidation, dissolution or winding up, subject to the preferences of any shares of our Preferred Stock which may then be outstanding,
each outstanding share entitles its holder to participate in all assets that remain after payment of liabilities and after providing for
each class of stock, if any, having preference over the common stock.
Holders of Common Stock have no conversion, preemptive or other subscription
rights, and there are no redemption provisions for the common stock. The rights of the holders of Common Stock are subject to any rights
that may be fixed for holders of Preferred Stock, when and if any Preferred Stock is authorized and issued. All outstanding shares of
Common Stock are duly authorized, validly issued, fully paid and non-assessable.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth certain information,
as of July 13, 2022, with respect to the beneficial ownership of our capital stock by (i) all of our directors, (ii) each of our executive
officers named in the Summary Compensation Table, (iii) all of our directors and named executive officers as a group, and (iv) all persons
known to us to be the beneficial owner of more than five percent (5%) of any class of our voting securities. Under those rules, beneficial
ownership includes any shares as to which the individual or entity has sole or shared voting power or investment power and also any shares
that the individual or entity has the right to acquire within 60 days after July 13, 2022 through the exercise of any stock option, warrant
or other right, or the conversion of any security. Unless otherwise indicated, each person or entity has sole voting and investment power
(or shares such power with his or her spouse) with respect to the shares set forth in the following table. The inclusion in the table
below of any shares deemed beneficially owned does not constitute an admission of beneficial ownership of those shares.
Name |
|
Shares Beneficially Owned |
|
Percent of Common Stock (1) |
5% Stockholders |
|
|
|
|
Jonathan Bates (2) |
|
15,700,000 |
|
33.3% |
Innovative Digital Investors Emerging Technology, LP |
|
11,500,000 |
|
24.4% |
Rykor Energy Solutions, LLC (3) |
|
8,016,000 |
|
15.3% |
Sam Jorgensen (4) |
|
6,887,754 |
|
14.6% |
BFAM Partners, LLC |
|
4,200,000 |
|
8.9% |
Michael Maloney |
|
4,000,000 |
|
8.5% |
Abed Equities |
|
3,650,000 |
|
7.7% |
BitFlair Mining Corp. |
|
3,443,877 |
|
7.3% |
Coral Investment Partners, LP (5) |
|
2,505,000 |
|
5.2% |
Directors and Named Executive Officers |
|
|
|
|
Jonathan Bates (2) |
|
15,700,000 |
|
33.3% |
Michael Maloney |
|
4,000,000 |
|
8.5% |
Ryan Ramnath (6) |
|
3,443,877 |
|
7.3% |
Erik Nelson (7) |
|
2,655,000 |
|
5.5% |
Raymond Mow |
|
1,250,000 |
|
2.7% |
Seth Bayles |
|
500,000 |
|
1.1% |
Officers and Directors as a Group |
|
27,548,877 |
|
57.2% |
|
(1) |
Based on 47,098,091 shares of common stock issued and outstanding as of July 13, 2022. |
|
(2) |
Includes (i) 11,500,000 shares owned by Innovative Digital Investors Emerging Technology, LP (“Innovative”), and (ii) 4,200,000 shares owned by BFAM Partners, LLC, of which Mr. Bates is the 100% owner. Mr. Bates has sole voting and investment power of any shares owned by Innovative by virtue of his ownership of its general partner. BFAM and Co. and an individual retirement account established by Mr. Bates own approximately 14.63% of Innovative. Mr. Bates owns 90% of BFAM and Co., and a trust established for his children on the remaining 10%. Mr. Bates disclaims beneficial ownership of any shares owned by Innovative beyond his percentage interest in such entity. |
|
(3) |
Includes (i) 2,672,000 shares held outright, (ii) 2,672,000 Class C-1 Warrants which are exercisable immediately, and (iii) 2,672,000 Class C-1 Warrants which are exercisable immediately. |
|
(4) |
Includes (i) 3,443,877 shares owned by Mr. Jorgensen and (ii) 3,443,877 shares owned by BitFlair Mining Corp. (“BitFlair”), of which Mr. Jorgensen has shared voting and investment power. Mr. Jorgenson disclaims beneficial ownership of shares held by BitFlair beyond his 40% percentage interest therein. |
|
(5) |
Includes (i) 1,505,000 shares held outright, (ii) 500,000 Class A Warrants which are exercisable immediately, and (iii) 500,000 Class B Warrants which are exercisable immediately. |
|
(6) |
Includes 3,443,877 shares owned by BitFlair, of which Mr. Ramnath has shared voting and investment power. Mr. Ramnath disclaims beneficial ownership of shares held by BitFlair beyond his percentage interest in Bitflair of 40%. |
|
(7) |
Includes (i) 2,505,000 shares beneficially owned by Coral Investment Partners, LP (“Coral”), as to which Mr. Nelson, in his capacity as owner of the general partner, has sole voting and investment power, consisting of (A) 1,505,000 shares owned by Coral, (B) 500,000 Class A Warrants owned by Coral which are immediately exercisable, and (C) 500,000 Class B Warrants owned by Coral which are immediately exercisable, and (ii) 150,000 shares beneficially owned by Sterling Acquisitions 1, Inc., which is owned by Mr. Nelson, consisting of (X) 50,000 shares owned by Sterling, (Y) 50,000 Class A Warrants owned by Sterling, and (Z) 50,000 Class B Warrants owned by Sterling. Mr. Nelson disclaims beneficial ownership of shares held by Coral beyond his 40% ownership interest therein. |
SUMMARY OF AMENDMENTS INLCUDED IN A&R COI
On July 13, 2022, our Board of Directors and the
Consenting Stockholders approved the A&R COI, which includes a number of amendments to our Certificate of Incorporation. A summary
of each of the material amendments is set forth below.
Authorization of Preferred Stock
The A&R COI authorizes the Company to issue
up to 20,000,000 shares of preferred stock, par value $0.0001 per share, whereas the Current COI does not authorize the Company to issue
any preferred stock.
The preferred stock authorized by the A&R COI will authorize the
Board of Directors, without further stockholder approval, to issue preferred stock in one or more series from time to time and fix or
alter the designations, relative rights, priorities, preferences, qualifications, limitations and restrictions of the shares of each series.
The rights, preferences, limitations and restrictions of different series of preferred stock may differ with respect to dividend rates,
amounts payable on liquidation, voting rights, conversion rights, redemption provisions, sinking fund provisions and other matters. Our
Board of Directors may authorize the issuance of preferred stock, which ranks senior to our common stock for the payment of dividends
and the distribution of assets on liquidation. In addition, our Board of Directors can fix limitations and restrictions, if any, upon
the payment of dividends on our common stock to be effective while any shares of preferred stock are outstanding.
The Board of Directors approved this amendment
because the Company is actively working to raise capital for the Company in order to fulfill the Company’s business plan of opening
internet data centers to host Bitcoin miners. A common capital raising strategy is to raise capital through the issuance of preferred
stock. Without the preferred stock, the only types of securities that the Company has available are common stock and debt securities.
Many investors are not interested in investing in common stock issued by a company that is still at an early stage of development. On
the other hand, the issuance of debt securities substantially increases the risk to common stockholders since the consequences of a default
can be very severe, including bankruptcy and/or forced liquidation. Therefore, the Company needs the flexibility to issue preferred stock
to raise additional capital.
One potential disadvantage is that the preferential
terms granted to preferred stockholders may prove prejudicial or dilutive to common stockholders. Another potential disadvantage is that
the creation and issuance of a series of preferred stock may be used as a means to discourage an unsolicited takeover of the Company and
entrench management. However, at this time management already owns a majority interest in the Company; therefore, it has an interest in
preventing the issuance of preferred stock that is prejudicial to common stock, and its control of a majority of common shares makes an
unsolicited takeover impossible, even without the ability to issue preferred shares.
Special Meetings of Stockholders
The A&R COI provides that special meetings
of stockholders may only be called by chairman of the Board of Directors, the chief executive officer or by a majority of the Board of
Directors. The Current COI is silent on the issue of who can call a special meeting, which means the issue is governed by the default
provisions of the DGCL. Section 211(d) of the DGCL provides the special meetings may only be called by the Board of Directors “or
by such person or persons as may be authorized by the certificate of incorporation or by the bylaws.” Therefore, the amendment will
expand the category of persons who have a right to call a special meeting.
Limitation of Liability of Directors
The A&R COI provides that the liability of
directors shall be limited to the maximum extent permitted by Delaware law. The Current COI does not contain any provision purporting
to limit the liability of directors.
Section 102(b)(7) of the DGCL permits a corporation
to include a provision in its certificate of incorporation eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision may not eliminate or
limit the liability of a director: (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) for liability
for paying an unlawful dividend; or (iv) for any transaction from which the director derived an improper personal benefit.
No such provision will eliminate or limit the
liability of a director for any act or omission occurring prior to the date when such provision becomes effective. On the other hand,
any amendment, repeal or elimination of such a provision shall not affect its application with respect to an act or omission by a director
occurring before such amendment, repeal or elimination unless the provision provides otherwise at the time of such act or omission.
The Company is planning to seek a listing for
its common shares on a national securities exchange as soon as it is eligible. As part of that effort, the Company is actively seeking
additional independent directors, including directors with sufficient accounting expertise to serve on an audit committee. The inclusion
of provisions limiting the liability of directors is standard in certificates or articles of incorporation of public companies, and the
absence of such a provision in the Original COI is an impediment to attracting and retaining a qualified board of directors. The only
disadvantage may be that the Company may not have recourse against directors for certain kinds of misconduct.
Indemnification of Directors and Officers
The A&R COI provides that directors and officers
shall be indemnified against any action, suit or proceeding asserted against the director or officer by reason of the fact that the person
is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. In addition, the A&R COI
provides that the Company will be obligated to advance expenses for any indemnification claim prior to a resolution thereof, subject only
to the director’s or officer’s undertaking to repay the expenses in the event he or she is ultimately found not to be entitled
to indemnification. Such indemnification provisions are authorized by Section 145 of the DGCL.
The Current COI does not contain any provision
purporting to limit the liability of directors, although the Company’s existing bylaws does contain an indemnification provision,
but not an advancement of expenses obligation.
The Company is planning to seek a listing for
its common shares on a national securities exchange as soon as it is eligible. As part of that effort, the Company is actively seeking
additional independent directors, including directors with sufficient accounting expertise to serve on an audit committee. The Company
is also seeking additional qualified officers to add to its management team. The inclusion of provisions requiring the Company to indemnify
directors and officers is standard in certificates or articles of incorporation of public companies, and the absence of such a provision
in the Original COI is an impediment to attracting and retaining a qualified board of directors and management. The only disadvantage
may be that the Company could be faced with substantial and costly indemnification claims in the event an action, suit or proceeding is
threatened or filed against an officer or director.
Exclusive Jurisdiction in the Delaware Court
of Chancery
The A&R COI provides that the Court of Chancery
in the State of Delaware shall be the exclusive forum for any stockholder that brings a derivative action on behalf of the Company, any
claim for breach of fiduciary duty owed by any director, officers or employee of the Company, any action asserting a breach of the A&R
COI or Delaware corporate law, or any action asserting a claim governed by the internal affairs doctrine. The Current COI does not contain
any provision addressing the jurisdiction of claims against the Company or brought on behalf of the Company.
Section 115 of the DGCL permits a corporation
to include a provision in its certificate of incorporation that requires, consistent with applicable jurisdictional requirements, that
any or all claims that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity,
or as to which the DGCL confers jurisdiction upon the Court of Chancery, shall be brought solely and exclusively in any or all of the
courts of the State of Delaware.
The Company believes that a provision requiring
that any litigation involving corporate matters filed against or on behalf of the Company be heard in the State of Delaware will lead
to the more efficient administration of such litigation. First, the Delaware courts have unique expertise interpreting and applying Delaware
corporate law. Second, multi-district litigation is historically very expensive.
Director Provisions
The A&R COI contains various provisions relating to the election
and appointment of directors, all of which duplicate certain default provisions of the DGCL which govern when a corporation’s certificate
of incorporation or bylaws do not address the issue. The Current COI does not address these issues. The issues include:
| 1. | The number of directors shall be fixed from time to time in the manner provided in the Bylaws, which is what is provided for in Section
141(f) of the DGCL; |
| 2. | Directors shall be elected by a plurality of the vote of stockholders, which is what is provided for in Section 216(3) of the DGCL; |
| 3. | Stockholders may not cumulate votes for the election of directors, which is what is provided for in Section 214 of the DGCL unless
the certification of incorporation specifically authorizes cumulative voting; |
| | |
| 4. | Vacancies to the Board of Directors resulting from the resignation or removal of a director, or a newly created board seat, may be
filled by the existing members of the Board of Directors, if less than a quorum, which is what is provided for in Section 223(a)(1) of
the DGCL. |
While these provisions do not represent a change in the way directors
are appointed and serve under the Current COI, the provisions of the A&R COI relating to amendments to the A&R COI will make it
harder for stockholders to change these provisions without the approval of the Board of Directors.
Amendments to Bylaws
The A&R COI provides that the Bylaws may be amended or repealed
at any time by vote of a majority of the Board of Directors, or the vote of stockholders, provided that the required vote of stockholders
shall be 50% of the shares entitled to vote if the Board of Directors recommends that stockholders approve the amendment or repeal, and
otherwise the required vote shall be 75% of the shares entitled to vote.
The Current COI does not address the vote required for stockholders
to approve an amendment or repeal of the Bylaws, and therefore the issue is governed by the default provisions of the DGCL. Pursuant to
Section 216(2) of the DGCL, the amendment or repeal of the corporation’s bylaws normally requires the approval a majority of the
shares present in person or by proxy at the meeting and entitled to vote on the matter. A valid meeting only requires the presence of
a quorum, which consists of a majority of the outstanding shares (although a corporation has the right to reduce, in its certificate of
incorporation or bylaws, the number of shares required for a quorum to not less than 1/3).
These provisions do not represent a change the stockholder vote required
to amend or repeal the Bylaws where the Board of Directors recommends the amendment or repeal but does increase substantially the stockholder
vote required where the Board of Directors does not recommend the amendment or repeal. Therefore, the foregoing provision will make it
substantially harder for stockholders to amend or repeal the Bylaws without the approval of the Board of Directors, which could act as
an impediment to a party attempting an unsolicited takeover of the Company.
Amendments to A&R COI
The A&R COI provides that the A&R COI may be amended or repealed
at any time by vote of a majority of the outstanding shares of common stock entitled to vote on the amendment or repeal at a duly called
meeting of stockholders called expressly for that purpose, provided that the affirmative vote of not less than 75% of the outstanding
shares of common stock shall be required to amend the provisions of the A&R COI that relate to the election of directors, the amendment
of the Bylaws, meetings of stockholders, limitation of liability and indemnification for officers and directors, the choice of Delaware
as the exclusive forum for certain litigation involving the Company, and the provisions relating to the required vote to amend the A&R
COI.
The Current COI does not address the vote to amend the COI, and therefore
it is governed by the default provisions of the DGCL. Pursuant to Section 216(2) of the DGCL, amendments to a corporation’s certificate
of incorporation normally require the approval a majority of the shares present in person or by proxy at the meeting and entitled to vote
on the matter. A valid meeting only requires the presence of a quorum, which consists of a majority of the outstanding shares, although
a corporation has the right to reduce, in its certificate of incorporation or bylaws, the number of shares required for a quorum to not
less than 1/3. Therefore, under the Current COI, amendments may be approved to the Company’s certificate of incorporation by slightly
more than 25% of the outstanding shares of capital stock, assuming the Company has a minimal quorum for the stockholder’s meeting.
The foregoing provision will make it substantially harder for stockholders
to amend the A&R COI without the approval of the other major shareholders in the Company, which could act as an impediment to a party
attempting an unsolicited takeover of the Company.
Recommendation of Company; No Vote Required
The Board of Directors has determined that it
is the best interests of the Company to approve the A&R COI. No vote of holders of outstanding shares of the Company, other than the
Consenting Stockholders, is necessary for approval of the A&R COI. It is anticipated that the A&R COI will be filed of record
and be effective on the 21st day after this Information Statement is first mailed to shareholders. Shareholders will have no dissenters’
or appraisal rights with respect to the A&R COI.
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BITMINE IMMERSION TECHNOLOGIES, INC.
July ___, 2022
Bitmine Immersion Technologies, Inc., a corporation
organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is “Bitmine
Immersion Technologies, Inc.”. The original certificate of incorporation of the Corporation was filed with the Secretary
of State of the State of Delaware on November 19, 2019, under the name of Sandy Springs Holdings, Inc., and was amended by the Certificate
of Amendment, which was filed with the Secretary of State of the State of Delaware on July 19, 2021 (collectively, the “Original
Certificate”).
2. This Amended and Restated Certificate of Incorporation
(the “Amended and Restated Certificate”), which both restates and amends the provisions of the Original Certificate,
was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware and by written consent
of the Corporation’s stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware (the “DGCL”).
3. The text of the Original Certificate is hereby
restated and amended in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Bitmine Immersion
Technologies, Inc. (the “Corporation”).
ARTICLE II
PURPOSE
The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE III
REGISTERED AGENT
The street address of the registered office of
the Corporation in the State of Delaware is 1201 Orange St., Suite 600, One Commerce Center, in the City of Wilmington, County of New
Castle, State of Delaware, 19801, and the name of the Corporation’s registered agent at such address is Agents and Corporation,
Inc.
ARTICLE IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock.
The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized
to issue is 520,000,000 shares, consisting of (a) 500,000,000 shares of common stock (the “Common Stock”), and
(b) 20,000,000 shares of preferred stock (the “Preferred Stock”).
Section 4.2 Preferred Stock. The
Board of Directors of the Corporation (the “Board”) is expressly authorized at any time, and from time to time,
to provide for the issuance of shares of Preferred Stock in one or more series, with such voting powers, full or limited, or without voting
powers and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue thereof adopted by
the Board of Directors and included in a certificate of designation (a “Preferred Stock Designation”) filed
pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter,
to adopt any such resolution or resolutions. Subject to the limitations prescribed by law and in accordance with the provisions hereof,
a Preferred Stock Designation may designate:
(a) A
series and the number of shares to constitute the series;
(b) The
dividend rate, if any, of the series, the conditions and dates upon which such dividends shall be payable, the relation which such dividends
shall bear to the dividends payable on any other class or classes of stock, and whether such dividends shall be cumulative or noncumulative;
(c) Whether
the shares of the series shall be subject to redemption by the Corporation and, if made subject to such redemption, the times, prices
and other terms and conditions of such redemption;
(d) The
terms and amount of any sinking fund provided for the purchase or redemption of the shares of the series;
(e) Whether
or not the shares of the series shall be convertible into or exchangeable for shares of any other class or classes or of any other series
of any class or classes of stock of the Corporation, and, if provision be made for conversion or exchange, the times, prices, rates, adjustments
and other terms and conditions of such conversion or exchange;
(f) The
extent, if any, to which the holders of the shares of the series shall be entitled to vote with respect to the election of directors or
otherwise;
(g) The
restrictions, if any, on the issue or reissue of any additional Preferred Stock; and
(h) The
rights of the holders of the shares of the series upon the dissolution, liquidation, or winding up of the Corporation.
The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of
a majority of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, without
a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the
terms of any series of Preferred Stock.
Section 4.3 Common Stock. Subject
to the prior or equal rights, if any, of the Preferred Stock of any and all series stated and expressed by the Board of Directors in the
Preferred Stock Designation providing for the issuance of such Preferred Stock, the holders of Common Stock shall be entitled (i) to receive
dividends when and as declared by the Board of Directors out of any funds legally available therefor, (ii) in the event of any dissolution,
liquidation or winding up of the Corporation, to receive the remaining assets of the Corporation, ratably according to the number of shares
of Common Stock held, and (iii) to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders; provided
that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Amended and
Restated Certificate (including any Preferred Stock Designations setting forth the terms of any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately
or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate
(including any Preferred Stock Designations setting forth the terms of any series of Preferred Stock). No holder of Common Stock shall
have any preemptive right to purchase or subscribe for any part of any issue of stock or of securities of the Corporation convertible
into stock of any class whatsoever, whether now or hereafter authorized.
Section 4.4 Rights and Options.
The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation
any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s)
approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of
such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon
exercise thereof may not be less than the par value thereof.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1 Board Powers. The
business and affairs of the Corporation shall be managed by, or under the direction of, the Board, except as otherwise provided herein
or required by law.
Section 5.2 Number, Election and Term.
(a) The number of directors of the Corporation
shall be fixed from time to time in the manner provided in the Bylaws. Subject to Section 5.4 hereof, if the number
of directors is changed, any decrease shall not shorten the term of any incumbent director.
(b) Directors shall be elected by a plurality
of the votes cast at an annual meeting of stockholders by holders of Common Stock. The election of directors need not be by written ballot
unless the Bylaws of the corporation shall so provide.
(c) Subject to Section 5.4 hereof,
a director shall hold office until the next annual meeting of stockholders following the director’s election or appointment by the
Board and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation,
retirement, disqualification or removal.
(d) No stockholder will be permitted to cumulate
votes at any election of directors.
Section 5.3 Newly Created Directorships
and Vacancies. Subject to Section 5.4 hereof, newly created directorships resulting from an increase in the
number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause
may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by a
sole remaining director (and not by stockholders), and any director so chosen shall hold office until the next annual meeting of stockholders
following the director’s election or appointment by the Board and his or her successor has been elected and qualified, subject,
however, to such director’s earlier death, resignation, retirement, disqualification or removal.
Section 5.4 Preferred Stock - Directors.
Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders
of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors,
the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the
terms of such series of the Preferred Stock as set forth in this Amended and Restated Certificate (including any Preferred Stock Designation)
and such directors shall not be included in any of the classes created pursuant to this Article V unless expressly
provided by such terms.
ARTICLE VI
BYLAWS
Except as otherwise provided by law, the Bylaws
of the Corporation may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the Directors then in
office. The Bylaws of the Corporation may be amended or repealed at any annual meeting of stockholders, or special meeting of stockholders
called for such purpose, by the affirmative vote of at least 75% of the outstanding shares of capital stock entitled to vote on such amendment
or repeal, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders
approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of
the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class;
and further provided further, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board
that would have been valid if such Bylaws had not been adopted.
ARTICLE VII
MEETINGS OF STOCKHOLDERS
Subject to the rights, if any, of the holders of
any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation
may be called only by the Chairman of the Board, Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted
by a majority of the Board, and the ability of the stockholders to call a special meeting is hereby specifically denied. Except as provided
in the foregoing sentence, special meetings of stockholders may not be called by another person or persons.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Director
Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted
under the DGCL as the same exists or may hereafter be amended unless he or she violated his or her duty of loyalty to the Corporation
or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful
stock purchases or unlawful redemptions, or derived improper personal benefit from his or her action as a director. Any amendment, modification
or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect
of any act or omission occurring prior to the time of such amendment, modification or repeal.
Section 8.2 Indemnification and Advancement
of Expenses.
(a) To the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each
person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service
with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a
director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation,
attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by
such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay
the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding
in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in
advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the
indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be
indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by
this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators.
Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to
indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the
Board.
(b) The rights to indemnification and advancement
of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any
indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders
or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by
the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate
inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent
such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted
prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment
or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced
or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent
provision.
(d) This Section 8.2 shall
not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses
to persons other than indemnitees.
ARTICLE IX
EXCLUSIVE FORUM FOR CERTAIN LAWSUITS
Section 9.1 Forum. Unless the
Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Court
of Chancery”) shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (a) any
derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed
by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action
asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the DGCL or this
Amended and Restated Certificate or the Bylaws or (d) any action asserting a claim against the Corporation, its directors, officers or
employees governed by the internal affairs doctrine, except for, as to each of (a) through (d) above, any claim arising under the Securities
Act of 1933, as amended, or the Exchange Act, any claim as to which the Court of Chancery determines that there is an indispensable party
not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of
the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum
other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction, in which case, any such
claim shall be brought in any other court located in the State of Delaware possessing subject matter jurisdiction.
Section 9.2 Consent to Jurisdiction.
If any action the subject matter of which is within the scope of Section 9.1 immediately above is filed in a court other
than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such
stockholder shall be deemed to have consented to (a) the personal jurisdiction of the state and federal courts located within the State
of Delaware in connection with any action brought in any such court to enforce Section 9.1 immediately above (an “FSC
Enforcement Action”) and (b) having service of process made upon such stockholder in any such FSC Enforcement Action by
service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Section 9.3 Severability. If
any provision or provisions of this Article IX shall be held to be invalid, illegal or unenforceable as applied to
any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality
and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article
IX (including, without limitation, each portion of any sentence of this Article IX containing any such provision
held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of
such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby. Any person or
entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice
of and consented to the provisions of this Article IX.
ARTICLE X
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend or
repeal this Amended and Restated Certificate in the manner now or hereafter prescribed by statute and this Amended and Restated Certificate,
and all rights conferred upon stockholders herein are granted subject to this reservation. Whenever any vote of the holders of capital
stock of the Corporation is required to amend or repeal any provision of this Amended and Restated Certificate, and in addition to any
other vote of holders of capital stock that is required by this Amended and Restated Certificate or by law, such amendment or repeal shall
require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal,
and the affirmative vote of the majority of the outstanding shares of each class entitled to vote thereon as a class, at a duly constituted
meeting of stockholders called expressly for such purpose; provided, however, that the affirmative vote of not less than 75%
of the outstanding shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of not less than 75%
of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of Article
V, Article VI, Article VII, Article VIII, Article IX or Article X of this Amended and Restated Certificate.
IN WITNESS WHEREOF, Bitmine Immersion Technologies,
Inc. has caused this Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized
officer as of the date first set forth above.
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BITMINE IMMERSION TECHNOLOGIES, INC. |
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By: |
/s/ Jonathan Bates |
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Name: |
Jonathan Bates |
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Title: |
Chief Executive Officer |