Exhibit 3.9
As Filed With the Securities and Exchange Commission on September 14, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________
MARIJUANA COMPANY OF AMERICA, INC.
(Exact name of registrant as specified in its charter)
_____________________
|
Utah (State or other jurisdiction of |
633 W. 5th St., Ste. 2826 Los Angeles, CA 90071 |
98-1246221 (I.R.S. Employer Identification Number) |
| (Address, including zip code, of Principal Executive Offices) | ||
_____________________
Marijuana Company of America, Inc.
First Amended Equity Incentive Plan
(Full title of the plan)
_____________________
Jesus Quintero
Chief Executive Officer
Marijuana Company of America, Inc.
633 W. 5th St., Ste. 2826
Los Angeles, CA 90071
Telephone: (775) 401-6800
(Name and address of agent for service)
_____________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer [_] | Accelerated filer [_] | Non-accelerated filer [_] | Smaller reporting company [X] |
___________________________
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 2,500,000,000 shares of common shares of Marijuana Company of America, Inc. (the “Company” or the “Registrant”) that may be issued pursuant to the Registrant’s First Amended Equity Incentive Plan (the “Plan”). The Registrant previously registered 383,210,371 common shares for issuance under the Plan pursuant to Registration Statements on Form S-8 filed with the Securities and Exchange Commission on April 8, 2020 (File No. 333-237597), June 15, 2020 (File No.: 333-239174), July 28, 2020 (File No. 333-240133), September 29, 2020 (File No.: 333-249135), and November 24, 2020 (File No. 333-250929). Pursuant to General Instruction E to Form S-8, the contents of such Registration Statements on Form S-8 are hereby incorporated by reference herein, except to the extent supplemented or amended or superseded by the information set forth herein.
PART I
The information called for in Part 1 of Form S-8 is not being filed with or included in this Registration Statement on Form S-8 (by incorporation, by reference or otherwise) in accordance with the rules and regulations of the SEC.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 8. Exhibits.
|
Exhibit |
Description of Exhibit | ||
| 3.1 | Certificate of Incorporation (incorporated by reference from our Registration Statement on Form 1012g filed on May 23, 2017). | ||
| 3.2 | Amendment to Certificate of Incorporation dated February 2009 (incorporated by reference to our Form 1012g filed on May 23, 2017). | ||
| 3.3 | Amendment to Certificate of Incorporation dated July 2013 (incorporated by reference to our Form 1012g filed on May 23, 2017). | ||
| 3.4 | Amendment to Certificate of Incorporation dated August 2015 (incorporated by reference to our Form 1012g filed on May 23, 2017). | ||
| 3.5 | Amendment to Certificate of Incorporation dated September 2015 (incorporated by reference to our Form 1012g filed on May 23, 2017). | ||
| 3.6 | By Laws (incorporated by reference to our Form 1012g filed on May 23, 2017). | ||
| 3.7 | Certificate of Amendment dated June 26, 2020 (incorporated by reference from our Form 8-K filed on June 29, 2020). | ||
| 3.8 | Amendment to Certificate of Incorporation dated February 8, 2022 (incorporated by reference from our Form 8-K filed on February 8, 2022). | ||
| 3.9 | Amendment to Certificate of Incorporation dated May 16, 2022 | ||
| 3.10* | Amendment to Certificate of Incorporation dated June 15, 2022 and effective on July 1, 2022. | ||
| 5.1* | Opinion of Independent Law PLLC. | ||
| 23.1* | Consent of Independent Law PLLC (included in Exhibit 5.1). | ||
| 23.2* | Consent of L&L CPAs. | ||
| 24.1* | Power of Attorney (included in the signature page to this Registration Statement). | ||
| 99.1 | Equity Incentive Plan (incorporated herein by reference from Form 10-12g/A filed September 12, 2017). | ||
| 99.2* | First Amended Equity Incentive Plan. | ||
| 107* | Filing Fee Table. | ||
* Filed herewith
Item 9. Undertakings.
(a)Subsequent Disclosure
The undersigned registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;
(iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be included in a post-effective amendment by these paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2)That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b)Incorporation by Reference
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act), that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)Commission Position on Indemnification
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California, on September 14, 2022.
| MARIJUANA COMPANY OF AMERICA, INC. | ||
| By: | /s/ Jesus Quintero | |
Jesus Quintero Chief Finanical Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jesus Quintero with full power to act, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments, including post effective amendments, and supplements to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his or her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities indicated on September 14, 2022.
|
Signature |
Title |
Date |
|
/s/ Jesus Quintero Jesus Quintero |
Director, Chairman of the Board, CEO, CFO (Principal Executive Officer, Principal Accounting Officer)
|
September 14, 2022 |
|
/s/ Edward Manolos Edward Manolos |
Director | September 14, 2022 |
|
/s/Tad Mailander Tad Mailander |
Director | September 14, 2022 |
|
7
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Exhibit 3.9
Exhibit 3.10
Exhibit 5.1
|
Independent Law PLLC Alan T. Hawkins, Esq. ahawkins@independent.law www.independent.law (352) 353-4048 2106 NW 4th Place, Gainesville, Florida 32603 |
September 14, 2022
Marijuana Company of America, Inc.
Jesus M. Quintero, CEO
633 W. 5th St., Suite 2826
Los Angeles, CA 90071
Re: Registration Statement on Form S-8
To The Board of Directors:
We have acted as counsel to Marijuana Company of America, Inc., a Utah corporation (the “Company”), with respect to the Company’s Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission on or about the date hereof. The Registration Statement relates to the registration under the Securities Act of 1933, as amended (the “Act”), by the Company of 2,500,000,000 shares of the Company’s Common Stock, no par value (the “Shares”), which may be issued under the Company’s 2017 Equity Compensation Plan, as amended (the “Plan”).
We have examined, among other things, originals and/or copies (certified or otherwise identified to our satisfaction) of such documents, papers, statutes, and authorities as we have deemed necessary to form a basis for the opinion hereinafter expressed. In our examination, we have assumed the genuineness of all signatures and the conformity to original documents of all copies submitted to us. As to various questions of fact material to our opinion, we have relied on statements and certificates of officers and representatives of the Company.
We have also assumed that:
(i) the Registration Statement will be effective and will comply with all applicable laws at the time the Shares are offered as contemplated by the Registration Statement; and
(ii) all Shares will be issued in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement.
Based on the foregoing, and subject to the limitations, qualifications, exceptions and assumptions expressed herein, we are of the opinion that, with respect to the Shares to be offered pursuant to the Registration Statement, after the Registration Statement becomes effective under the Act, such shares have been duly authorized and the Shares to be issued by the Company under the Plan, when duly issued and delivered pursuant to the terms of the Plan, will be validly issued, fully paid, and non-assessable.
This opinion is limited to the Corporation Law of the State of Utah, and we express no opinion with respect to the laws of any other jurisdiction or any other laws of the State of Utah.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments that hereafter may be brought to our attention and that may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company or the Shares.
Very truly yours,
/s/ Alan T. Hawkins, Esq.
Alan T. Hawkins, Esq.
Independent Law PLLC
Copy: Marijuana Company of America, Inc., Mr. Jesus M. Quintero, CEO, CFO
September 14, 2022
Page 2
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Form S-8, of our report dated April 15, 2022 with respect to the consolidated financial statements of Marijuana Company of America, Inc. as at December 31, 2020, and at December 31, 2021, which include an explanatory paragraph as to the Company’s ability to continue as a going concern, as included in the Annual Report on Form 10-K of Marijuana Company of America, Inc. for the year ended December 31, 2021, as filed with the United States Securities Exchange Commission (“SEC”).
/s/ L&L CPAs, PA
L&L CPAs, PA
Certified Public Accountants
Plantation, FL
September 14, 2022
Exhibit 99.2
FIRST AMENDMENT TO THE
MARIJUANA COMPANY OF AMERICA, INC. EQUITY INCENTIVE PLAN
WHEREAS, Marijuana Company of America, Inc. (“Company”) previously adopted the Marijuana Company of America, Inc. Equity Incentive Plan (“Plan”); and
WHEREAS, the Company desires to amend the Plan to increase the number of Shares of Common Stock available for issuance thereunder by 2,500,000,000 shares;
WHEREAS, the stockholders of the Company have approved the proposed amendment of the Plan to increase the number of Shares of Common Stock available for issuance thereunder by 2,500,000,000 shares; and
WHEREAS, the Company maintains the right to amend the Plan pursuant to Section 12.2 therein;
NOW THEREFORE, Section 3 of the Plan is deleted in its entirety and replaced with the following, effective September 12, 2022:
“4. Shares Subject to the Plan.
4.1 Maximum Share Limitations. Subject to appropriate adjustments for stock splits or reverse stock splits, the maximum aggregate number of shares of Common Stock that may be issued and sold under all Awards granted under the Plan shall be up to 3,000,000,000 Shares of Common Stock issued and sold under the Plan may be either authorized but unissued shares or shares held in the Company’s treasury. To the extent that any Award involving the issuance of shares of Common Stock is forfeited, cancelled, returned to the Company for failure to satisfy vesting requirements or other conditions of the Award, or otherwise terminates without an issuance of shares of Common Stock being made thereunder, the shares of Common Stock covered thereby will no longer be counted against the foregoing maximum share limitations and may again be made subject to Awards under the Plan pursuant to such limitations.
4.2 Adjustments. If there shall occur any change with respect to the outstanding shares of Common Stock by reason of any recapitalization, reclassification, stock dividend, extraordinary dividend, stock split, reverse stock split or other distribution with respect to the shares of Common Stock, or any merger, reorganization, consolidation, combination, spin-off or other similar corporate change, or any other change affecting the Common Stock, the Committee may, in the manner and to the extent that it deems appropriate and equitable to the Participants and consistent with the terms of the Plan, cause an adjustment to be made in (i) the maximum number and kind of shares provided in Section 4.1 hereof, (ii) the number and kind of shares of Common Stock, or other rights subject to then outstanding Awards, (iii) the exercise or base price for each share or other right subject to then outstanding Awards, and (iv) any other terms of an Award that are affected by the event. Notwithstanding the foregoing, in the case of Incentive Stock Options, any such adjustments shall, to the extent practicable, be made in a manner consistent with the requirements of Section 424(a) of the Code.”
IN WITNESS WHEREOF, this Amendment is hereby executed by a duty authorized officer of the Company this 12th day of September 12, 2022.
| MARIJUANA COMPANY OF AMERICA, INC. | ||
| By: |
/s/ Jesus Quintero | |
| Title: President and CEO | ||
Exhibit 107
Calculation of Filing Fee Tables
FORM S-8
MARIJUANA COMPANY OF AMERICA, INC.
Table 1: Newly Registered and Carry Forward Securities
| Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered |
Proposed Maximum Offering Price Per Share(1) |
Maximum Aggregate Offering Price(1) |
Fee Rate |
Amount of Registration Fee |
||||||||||||||||||||||
| Fees to Be Paid |
|||||||||||||||||||||||||||||
| Equity | Common Stock | Rule 457(c) and Rule 457(h) | 2,500,000,000 | (2)(5) | $0.00025(4) | $625,000 | 0.0000927 | $57.94 | |||||||||||||||||||||
| Totals | 2,500,000,000 | (5) | $625,000 | $57.94 | |||||||||||||||||||||||||
| (1) | Pursuant to Rule 416 under the U.S. Securities Act of 1933, as amended (the “Securities Act”), the number of common shares being registered hereby shall be adjusted to include any additional common shares that may become issuable as a result of stock splits, stock dividends, recapitalizations or any other similar transactions effected without the receipt of consideration that results in an increase in the number of the Registrant’s outstanding common shares in accordance with the provisions of the Marijuana Company of America, Inc. First Amended Equity Incentive Plan (the “Plan”). |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h) (1) of Rule 457 under the Securities Act on the basis of the average of the high and low prices for the common shares on the OTC Link platform on September 8, 2022. |
| (3) | Represents 2,500,000,000 common shares reserved for issuance under the Plan. |