SHAREHOLDERS' DEFICIT | NOTE 8 – SHAREHOLDERS’ DEFICIT Preferred Stock Series A Preferred Stock Attributes of Series A Preferred Stock include but are not limited to the following: Distribution in Liquidation The Series A Preferred Stock has a liquidation preference of $10,000,000, payable only upon certain liquidity events or upon achievement of a market value of our equity equaling $200,000,000 or more. Upon any liquidation, dissolution or winding up of the Company, and after paying or adequately providing for the payment of all its obligations, the remainder of the assets of the Company shall be distributed, either in cash or in kind, first pro rata to the holders of the Series A Preferred Stock in an amount equal to the Liquidation Value (as described below); then, to any other series of Preferred Stock, until an amount to be determined by a resolution of the Board of Directors prior to issuances of such Preferred Stock, has been distributed per share, and, then, the remainder pro rata to the holders of the Common Stock. Upon the occurrence of any Liquidation Event (as defined below), each holder of Series A Preferred Stock will receive a payment equal to the Original Issue Price for each share of Series A Preferred Stock held by such holder (the “Liquidation Value”). A “Liquidation Event” will have occurred when: ● The Company has an average market capitalization (calculated by adding the value of all outstanding shares of Common Stock valued at the Company’s closing sale price on the OTCQB or other applicable bulletin board or exchange, plus the value of the outstanding Series A Preferred Stock at the Original Issues Price per share) of $200,000,000 or more over any 90 day period. The holders of the Series A Preferred Stock would have the right, for 30 days after the end of such qualifying 90 day measurement period, to require the Company to purchase the Series A Preferred Stock for an amount equal to the Liquidation Value. ● Any Liquidity Event in which the Company receives proceeds of $50,000,000 or more. For purposes hereof, a “Liquidity Event” means any (a) liquidation, dissolution or winding up of the Company; (b) acquisition of the Company by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger, share exchange, share purchase or consolidation) provided that the applicable transaction shall not be deemed a liquidation unless the Company’s stockholders constituted immediately prior to such transaction hold less than 50% of the voting power of the surviving or acquiring entity; or (c) the sale, lease, transfer or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole, or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries. Written notice of any Liquidation Event (the “Liquidation Notice”) shall be given by mail, postage prepaid, or by facsimile to non-U.S. residents, not less than five days prior to the anticipated payment date state therein, to the holders of record of Series A Preferred Stock, such notice to be addressed to each such holder at its address as shown by the records of the Company. The Liquidation Notice shall state (i) the anticipated payment date, and (ii) the total Liquidation Value available for distribution to Series A Preferred Stock shareholders upon the occurrence of the Liquidation Event. Redemption The Series A Preferred Stock may be redeemed in whole or in part as determined by a resolution of the Board of Directors at any time, at a price equal to the Liquidation Value. Voting Rights Shares of Series A Preferred Stock shall have no rights to vote on any matter submitted to a vote of shareholders, except as required by law, in which case each share of Series A Preferred Stock shall be entitled to one vote. Conversion Rights Holders of Series A Preferred Stock will have no right to convert such shares into any other equity securities of the Company. Agreement with Holder of Series A Preferred Stock Simultaneous with the Shea Exchange Agreement (Note 3), Wits Basin exchanged 19,713,544 shares of the Company’s common stock it held for 10,000,000 shares ($.001 par value each) of “Series A Preferred Stock” with an original issue price of $1.00 per share. The Company executed an Agreement with Wits to exchange these preferred shares for shares of common stock. The Company entered into an Agreement on July 29, 2016 with the holder of the Series A Preferred Stock, Wits Basin and Wits Basins’ secured creditor regarding exchange options for the Series A Preferred Stock. Under the terms of the Agreement, upon the occurrence of a Triggering Event (as defined below), the holders of the Preferred Stock will receive the corresponding compensation, the “Triggering Events” and their corresponding compensation are set forth below: Liquidation Rights, Stated Value and Redemption. The Series A Preferred Stock has a stated value of $10,000,000 (referred to herein as “Stated Value”), payable only upon certain events. (a) Upon any liquidation, dissolution or winding up of the Company, and after paying or adequately providing for the payment of all its obligations, the remainder of the assets of the Company shall be distributed, either in cash or in kind, first pro rata to the holders of the Series A Preferred Stock in an amount equal to the Stated Value (as described below); then, to any other series of Preferred Stock, until an amount to be determined by a resolution of the Board of Directors prior to issuances of such Preferred Stock, has been distributed per share, and, then, the remainder pro rata to the holders of the Common Stock. (b) Upon the occurrence of a Triggering Event (as defined below), the holders of the Preferred Stock will receive the corresponding compensation. The “Triggering Events” and their corresponding compensation are set forth below: (1) If either of the following occur: (i) the Company receives proceeds of $10,000,000 or more in a cash offering; or (ii) the Company’s Common Stock trades at $3.00 or more (with proportionate adjustments for stock splits) for 90 consecutive trading days; then all of the 10,000,000 shares of the Preferred Stock will be exchanged for 5,000,000 shares of Common Stock. (2) If the Company has an average market capitalization (calculated by adding the value of all outstanding shares of Common Stock valued at the Company’s closing sale price on the Over the Counter Markets (or other applicable exchange) (the “Market”) of $200,000,000 or more over any consecutive 95 day period following the effective date of this agreement and the effective date of any required duly authorized amendment to the Standard’s Articles of Incorporation, the terms of the Preferred Stock and the subsequent consent of the holder’s secured creditor to the final form and terms of such amendment, and items (1)(i) or (1)(ii) of Section (b) have not been met, then the Company has the right to: (i) issue the number of shares of Common Stock equal to the Stated Value using the average closing sale price of the Common Stock on the Over the Counter Markets of the prior 15 trading days from the date of the notice. The Company will provide 10 days’ prior written notice to the holder and any known secured party of such holder of the Series A Stock of its intention to proceed with this option; or (ii) issue a portion of the Stated Value in shares of Common Stock based on the valuation formula in 3(b)(2)(A) and pay the remaining Stated Value in cash. If this above section is triggered, the Company has three years to choose option (i) or (ii) and pay the Stated Value. The Company has 60 days from the date of notice of its election to pay under either (i) or (ii). Upon payment of the Stated Value, the Series A Shares will be retired. If the above section is triggered and the Company fails to pay the Stated Value within the three year time frame, the Company will take all necessary action to return the Series A Preferred Shares in their original form (containing all original terms and conditions) to the holder with the exception that the Stated Value will be increased to $10,100,000 upon delivery and the Company will lose the exchange options provided in Section (3)(b). The previous terms of the Series A Preferred Stock would have required the Company to make a payment of $10,000,000 upon the Company having an average market capitalization of $200,000,000. This Agreement gives the Company additional payment options and allows for the payment to be made completely or partially in common shares, depending on the Triggering Event. The Company issued five million shares of restricted common stock on April 1, 2016 that are being held in escrow pending a Series A Preferred Stock Triggering Event. Series B Preferred Stock There are no shares of Series B Preferred Stock issued and outstanding. The class of stock has been retired. On April 11, 2016 the Company and Pure Path, a related party, executed an addendum to their Senior Secured Convertible Promissory Note (Note 6) removing Pure Path’s ability to convert its note into shares of Series B Preferred Stock. Subsequently, the Company retired and cancelled the entire class of Series B Preferred Stock.. Common Stock Common Stock issued on conversion of notes payable On July 22, 2016 three convertible promissory notes payable totaling $160,000 and accrued interest of $4,919 were converted into 4,879,067 shares of restricted common stock. On December 28, 2016 a convertible promissory note payable totaling $65,000 and accrued interest of $353 were converted into 3,262,838 shares of restricted common stock. Sale of Common Stock On August 17, 2016 the company received a subscription agreement and $20,000 for 275,028 shares of the Company common stock. Option Grants 2014 Option Plan By Board Resolution effective January 27, 2014, the Company adopted a 2014 Stock Incentive Plan (the “Plan”) to compensate employees and consulting groups in their efforts to enhance the long-term shareholder value of the Company. Pursuant to the Plan, selected persons are offered opportunities to participate in the Company’s growth and success and are encouraged to acquire and maintain stock ownership in the Company. The Plan grants options to purchase shares of the Company’s common stock vesting at dates beginning on the date of grant and issuable at chronological or performance increments. The Plan Administrator may also grandfather in existing options granted during 2013. The shareholders approved the 2014 Plan at the 2014 annual meeting. Under administration by the Compensation Committee (the “Plan Administrator”), a maximum of 75,000,000 shares of common stock are available for issuance under the Plan, subject to adjustment from time to time. Awards may be granted under the Plan to officers, directors, employees and consultants of the Company and as the Plan Administrator selects. The Plan Administrator is authorized, in its sole discretion, to issue options as incentive stock options, which shall be appropriately designated. The term of each option to purchase common stock of the Company is established by the Plan Administrator or, if not so established, is 10 years from the grant date. The Plan Administrator establishes the time at which each option shall vest and become exercisable. If not established in the instrument evidencing the option, the option shall vest and become exercisable according to the following schedule: (i) after one year of the participant’s continuous employment or service with the company or its related corporations, one quarter of the total options will be vested and exercisable; (ii) after each additional six-month period of continuous service completed thereafter, an additional one eighth of the total options will be vested and exercisable; and (iii) after four years, 100% of the options will be vested and exercisable. Under the terms of the Plan, the exercise price for shares shall be paid in cash or check to the Company unless the Plan Administrator determines otherwise. The Plan Administrator shall determine whether the options will continue to be exercisable, and the terms and conditions of such exercise, if a participant ceases to be employed or provide services to the Company. If not so established in the instrument evidencing such options, any portion of an option that is not vested and exercisable on the date of termination of the participant’s employment or service relationship (the “Employment Termination Date”) shall expire on such date. Any portion of an option that is vested and exercisable on the Employment Termination Date shall expire upon the earliest to occur of: (i) if the participant’s Employment Termination Date occurs by reason of retirement, disability or death, the one-year anniversary of such Employment Termination Date; (ii) if the participant’s Employment Termination Date occurs for reasons other than cause, retirement, disability or death, the three-month anniversary of such Employment Termination Date; or (iii) the last day of the option term. Notwithstanding the foregoing, if the participant dies after the Employment Termination Date while the Option is otherwise exercisable, the portion of the option that is vested and exercisable on such Employment Termination Date shall expire upon the earlier to occur of: (a) the last day of the option term; or (b) the first anniversary of the date of death, unless the Plan Administrator determines otherwise. If a participant is terminated for cause, the options shall automatically expire at the time the Company first notifies the participant of the termination. If a participant’s employment is suspended pending investigation of whether they will be terminated for cause, the participant’s rights under any option shall be suspended during the period of investigation. Awards granted under the Plan may not be assigned, except, to the extent permitted by Section 422 of the Internal Revenue Code (the “IRC”), and the Plan Administrator may permit such assignment, transfer and exercisability, and may permit a participant to designate a beneficiary who may exercise the award or receive compensation under the award after the participant’s death. Any award permitted to be assigned shall be subject to the terms and conditions contained in the instrument evidencing the award. The Plan may only be amended by the Company’s Board of Directors, as it deems advisable. Shareholder approval shall be required for any amendment to the extent required for compliance with Section 422 of the IRC, as amended or any applicable law or regulation. The Board may suspend or terminate the Plan at any time. Incentive stock options may not be granted more than 10 years after the later of the Plan’s adoption by the Board or the adoption by the Board of any amendment to the Plan that constitutes adoption of a new plan for the purpose of Section 422 of the IRC. Participants who are residents of California shall be subject to additional terms and conditions until the Common Stock becomes a publicly traded security, under the California Securities Code. On January 16, 2015 the Company’s Chief Operating Officer was granted 2,250,000 options under the 2014 Plan with an exercise price of $1.15 per share for a term of seven years. The options shall vest and become exercisable as follows: (i) 750,000 shall vest on the Date of Grant; (ii) 187,500 shall vest on each of the following dates: April 1, 2015, July 1, 2015, October 1, 2015, January 1, 2016, April 1, 2016, July 1, 2016, October 1, 2016 and January 1, 2017. On March 27, 2015 the Company executed an addendum to the Chief Operating Officer’s employment agreement wherein he agreed to take on additional responsibilities. As consideration, the Company issued an additional 7,000,000 options under the 2014 Plan with an exercise price of $1.00 for a term of seven years. The 7,000,000 options vested in full on grant. The following tables summarize information about the Company’s stock options: Number of Weighted Options outstanding - December 31, 2015 35,076,223 $ 0.99 Granted — — Canceled or expired (2,500,000 ) 0.88 Exercised — — Options outstanding –December 31, 2016 32,576,223 $ 0.98 Granted — — Canceled or expired — — Exercised — — Options outstanding –December 31, 2017 32,576,223 $ 0.98 There are no unvested options as of December 31, 2017. The following tables summarize information about stock options outstanding and exercisable: Options Outstanding and Exercisable at December 31, 2017 Range of Number Weighted Weighted Aggregate $0.40 to $0.60 5,276,223 2.9 years $ 0.46 $ — $0.61 to $1.00 9,800,000 2.7 years $ 0.67 $ — $1.01 to $1.50 14,500,000 2.8 years $ 1.25 $ — $1.51 to $2.25 3,000,000 3.3 years $ 1.63 $ — $0.40 to $2.25 32,576,223 2.9 years $ 0.98 $ — Options Outstanding and Exercisable at December 31, 2016 Range of Number Weighted Weighted Aggregate $0.40 to $0.60 5,276,223 3.9 years $ 0.46 $ — $0.61 to $1.00 9,800,000 3.7 years $ 0.67 $ — $1.01 to $1.50 14,500,000 3.8 years $ 1.25 $ — $1.51 to $2.25 3,000,000 4.3 years $ 1.63 $ — $0.40 to $2.25 32,576,223 3.9 years $ 0.98 $ — (1) The aggregate intrinsic value in the table represents the difference between the closing stock price on December 31, 2017 and 2016 and the exercise price, multiplied by the number of in-the-money options that would have been received by the option holders had all option holders exercised their options on December 31, 2017 and 2016. Common Stock Purchase Warrants For warrants granted to non-employees in exchange for services, the Company recorded the fair value of the equity instrument using the Black-Scholes pricing model unless the value of the services is more reliably measurable. The Company and Wits Basin (Note 3) executed a Settlement Agreement on January 22, 2016 (Note 9). Pursuant to the terms of the Settlement Agreement, the Company issued 630,000 warrants to purchase common stock at an exercise price of $0.70 and 630,000 warrants at an exercise price of $0.30 to investors of Wits Basin. The warrants are exercisable until December 31, 2018. The following table summarizes information about the Company’s stock purchase warrants outstanding at December 31, 2017 and December 31, 2016: Number Weighted Range Weighted Outstanding at December 31, 2015 5,015,640 $ 0.88 $ 0.20 – 2.00 4.4 years Granted 1,260,000 $ 2.00 $ 0.30 – 1.25 Cancelled or expired — — — Exercised — $ — $ — Outstanding at December 31, 2016 6,275,640 $ 0.86 $ 0.20 – 2.00 3.2 years Granted — Cancelled or expired (150,000 ) $ 2.00 $ 2.00 Exercised — Outstanding at December 31, 2017 6,125,640 $ 0.77 $ 0.20 – 1.23 Warrants exercisable at December 31, 2017 6,125,640 The aggregate intrinsic value of the 6,125,640 and 6,275,640 outstanding and exercisable warrants at December 31, 2017 and 2016 was $0. The intrinsic value is the difference between the closing stock price on December 31, 2017 and 2016 and the exercise price, multiplied by the number of in-the-money warrants had all warrant holders exercised their warrants on December 31, 2017 and 2016. |