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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 28, 2024
SILVERSUN
TECHNOLOGIES, INC. |
(Exact name of registrant as specified in its charter) |
Delaware |
|
001-38063 |
|
16-1633636 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
120 Eagle Rock Ave
East Hanover, NJ 07936
(Address of Principal Executive Offices)
(973) 396-1720
Registrant’s telephone number, including
area code
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common shares (par value $0.00001 per share) |
|
SSNT |
|
The NASDAQ Capital Market |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
8.01 Other Events.
As previously disclosed,
SilverSun Technologies, Inc. (the “Company” or “SilverSun”) entered into an Amended and Restated Investment Agreement
(the “Investment Agreement”), dated April 14, 2024, with Jacobs Private Equity II, LLC, a Delaware limited liability company
(“JPE”) (on behalf of itself and on behalf of the other investors party thereto (collectively with JPE, the “Investors”)),
providing for, among other things, an aggregate investment by the Investors of $1,000,000,000 in cash in the Company (collectively, the
“Equity Investment”).
In connection with the
anticipated closing of the Equity Investment (the “Closing”), expected to be June 6, 2024, which is conditional upon, and
subject to, the conditions thereto, including receipt of approval by the Company’s stockholders at a special stockholders’
meeting to be held on May 30, 2024 (the “Special Meeting”), the board of directors of the Company has declared a conditional
cash dividend (the “Cash Dividend”) in an aggregate amount of $17,400,000, payable on June 12, 2024, to holders of shares
of the Company’s common stock, par value $0.00001 per share (the “Company Common Stock”), of record as of the close
of business on June 5, 2024 (the “Record Date”). The payment of the Cash Dividend is conditional upon, and subject to, the
occurrence of the Closing and the satisfaction of the conditions thereto, including receipt of approval by the Company’s stockholders
at the Special Meeting.
On May 28, 2024, the
Company and JPE (on behalf of itself and the other Investors) entered into a letter agreement (the “Letter Agreement”), pursuant
to which the parties agreed that, subject to receipt of approval by the Company’s stockholders at the Special Meeting, the effectiveness
of the amended and restated certificate of incorporation referred to in the Investment Agreement, including the 8-1 reverse stock split
contemplated thereby (the “Reverse Stock Split), will be at 9:00 a.m. on the day of Closing, and not at 11:59 p.m. two days prior
to the Closing as previously contemplated by the Investment Agreement. A supplement to the definitive proxy statement on Schedule 14A
filed on April 30, 2024 as to these matters is being concurrently filed with the U.S. Securities and Exchange Commission.
The Letter Agreement
will not affect the aggregate amount of the Cash Dividend. The exact amount of the Cash Dividend on a per share basis will be equal to
$17,400,000 divided by the number of shares of Company Common Stock issued and outstanding as of the close of business on the Record Date,
which will occur one day prior to the effective time of the Reverse Stock Split. The per share Cash Dividend is expected to be approximately
$3.27, based on 5,315,581 shares of Company Common Stock expected to be outstanding as of the Record Date.
The foregoing description
of the Letter Agreement does not purport to be complete and is subject to, and qualified by, the full text of the Letter Agreement, a
copy of which is filed as Exhibit 10.1 and is incorporated herein by reference.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking
statements. Statements that are not historical facts, including statements about beliefs, expectations, targets or goals, such as statements
regarding revenue goals, are forward-looking statements. These statements are based on plans, estimates, expectations and/or goals at
the time the statements are made, and readers should not place undue reliance on them. In some cases, readers can identify forward-looking
statements by the use of forward-looking terms such as “may,” “will,” “should,” “expect,”
“opportunity,” “intend,” “plan,” “anticipate,” “believe,” “estimate,”
“predict,” “potential,” “target,” “goal,” or “continue,” or the negative of
these terms or other comparable terms. Forward-looking statements involve inherent risks and uncertainties and readers are cautioned that
a number of important factors could cause actual results to differ materially from those contained in any such forward-looking statements.
Factors that could cause actual results to differ materially from those described herein include, among others:
| ● | uncertainties as to the completion of the Equity Investment and the other transactions contemplated by the Investment Agreement, including
the risk that one or more of the transactions may involve unexpected costs, liabilities or delays; |
| ● | risks associated with potential significant volatility and fluctuations in the market price of SilverSun’s common stock; |
| ● | risks associated with the Company’s relatively low public float, which may result in its common stock experiencing significant
price volatility; |
| ● | the possibility that competing transaction proposals for the Company may be made; |
| ● | risks associated with raising additional equity or debt capital from public or private markets to pursue the Company’s business
plan following the closing of the Equity Investment, including in an amount that may significantly exceed the amount of the Equity Investment,
and the effects that raising such capital may have on SilverSun and its business, including the risk of substantial dilution or that SilverSun’s
common stock may experience a substantial decline in trading price; |
| ● | the possibility that additional future financings may not be available to the Company on acceptable terms or at all; |
| ● | the effects that the announcement, pendency or consummation of the Equity Investment and the other transactions contemplated by the
Investment Agreement may have on the Company and its current or future business or on the price of the Company’s common stock; |
| ● | the possibility that an active, liquid trading market for the Company’s common stock may not develop or, if developed, may not
be sustained; |
| ● | the possibility that the warrants and the preferred stock contemplated by the Investment Agreement, if issued, may or may not be converted
or exercised, and the economic impact on the Company and the holders of common stock of the Company that may result from either such exercise
or conversion, including dilution, or the continuance of the preferred stock remaining outstanding, and the impact its terms, including
its dividend, may have on the Company and the common stock of the Company; |
| ● | the possibility that all of the closing conditions to the Equity Investment or the other transactions contemplated by the Investment
Agreement may not be satisfied or waived, or any other required third-party, regulatory or other consents or approvals may not be obtained
within the relevant timeframe, or at all, including the possibility that SilverSun may fail to obtain stockholder approval for the transactions
contemplated by the Investment Agreement; |
| ● | the effects that a termination of the Investment Agreement may have on the Company, including the risk that the price of the Company’s
common stock may decline significantly if the Equity Investment is not completed; |
| ● | uncertainties regarding the Company’s focus, strategic plans and other management actions; |
| ● | the risk that the Company, following the closing of the Equity Investment, is or becomes highly dependent on the continued leadership
of Brad Jacobs as chairman and chief executive officer and the possibility that the loss of Mr. Jacobs in these roles could have a material
adverse effect on the Company’s business, financial condition and results of operations; |
| ● | the risks associated with the Company’s succession plans; |
| ● | the risks associated with, following the closing of the Equity Investment, being a “controlled company” as defined under
applicable stock exchange rules, including that Mr. Jacobs will be able to influence the Company’s management and affairs and all
matters requiring stockholder approval, including the election of directors and approval of significant corporate transactions; |
| ● | the risk that certain rules of the U.S. Securities and Exchange Commission (the “SEC”) may require that any registration
statement the Company may file with the SEC be subject to SEC review and potential delay in its effectiveness, and that a registration
statement must be filed and declared effective for any acquisition (including an all-cash acquisition), which would delay its consummation
and could reduce the Company’s attractiveness as an acquirer for potential acquisition targets; |
| ● | the possibility that the Company could elect to rely on the “controlled company” exemption under applicable stock exchange
rules and that the Company’s stockholders will not have the same protections afforded to stockholders of companies that are not
“controlled companies,” including that a majority of the members of the board of directors of the Company may not need to
be independent directors, that the Company’s nomination and corporate governance and compensation committees may not need to consist
entirely of independent directors and that the compensation of the Chief Executive Officer may not need to be determined or recommended
solely by an independent director; |
| ● | the possibility that the concentration of ownership by Mr. Jacobs may have the effect of delaying or preventing a change in control
of the Company and might affect the market price of shares of the common stock of the Company; |
| ● | the possibility that the Company’s status as a “controlled company” could cause the common stock of the Company
to be less attractive to certain investors; |
| ● | the risk that Mr. Jacobs’ past performance may not be representative of future results; |
| ● | the risk that the Company is unable to attract or retain world-class talent; |
| ● | the risk that the failure to consummate any acquisition expeditiously, or at all, could have a material adverse effect on SilverSun’s
business prospects, financial condition, results of operations or the price of SilverSun’s common stock; |
| ● | the risks that the Company may not be able to enter into agreements with acquisition targets on attractive terms, or at all, that
agreed acquisitions may not be consummated, or, if consummated, that the anticipated benefits thereof may not be realized and that the
Company encounter difficulties in integrating and operating such acquired companies, or that matters related to an acquired business (including
operating results or liabilities or contingencies) may have a negative effect on the Company or its securities or ability to implement
its business strategy, including that any such transaction may be dilutive or have other negative consequences to the Company and its
value or the trading prices of its securities; |
| ● | risks associated with cybersecurity and technology, including attempts by third parties to defeat the security measures of the Company
and its business partners, and the loss of confidential information and other business disruptions; |
| ● | the possibility that new investors in any future financing transactions could gain rights, preferences and privileges senior to those
of SilverSun’s existing stockholders; |
| ● | the possibility that building products distribution industry demand may soften or shift substantially due to cyclicality or seasonality
or dependence on general economic conditions, including inflation or deflation, interest rates, consumer confidence, labor and supply
shortages, weather and commodity prices; |
| ● | the possibility that regional or global barriers to trade or a global trade war could increase the cost of products in the building
products distribution industry, which could adversely impact the competitiveness of such products and the financial results of businesses
in the industry; |
| ● | risks associated with potential litigation related to the transactions contemplated by the Investment Agreement or related to any
possible subsequent financing transactions or acquisitions or investments; |
| ● | uncertainties regarding general economic, business, competitive, legal, regulatory, tax and geopolitical conditions; and |
| ● | other factors, including those set forth in the Company’s filings with the SEC , including its Annual Report on Form 10-K for
the fiscal year ended December 31, 2023, Quarterly Report on Form 10-Q for the quarter ended March 31, 2024 and subsequent Quarterly Reports
on Form 10-Q. |
Forward-looking statements herein speak only as of the date each statement
is made. Neither the Company nor any person undertakes any obligation to update any of these statements in light of new information or
future events, except to the extent required by applicable law.
Additional Information and Where to Find It
In connection with the Equity Investment, SilverSun filed with the
SEC a definitive proxy statement on Schedule 14A (the “Special Meeting Proxy Statement”) on April 30, 2024. SilverSun commenced
mailing the Special Meeting Proxy Statement and a form of proxy card to its stockholders on or about April 30, 2024. SILVERSUN’S
STOCKHOLDERS ARE URGED TO READ THE SPECIAL MEETING PROXY STATEMENT AND ALL OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC WHEN
THEY BECOME AVAILABLE BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION REGARDING THE PROPOSED EQUITY INVESTMENT. SilverSun’s
stockholders are able to obtain, without charge, a copy of the Special Meeting Proxy Statement and other relevant documents filed with
the SEC from the SEC’s website at http://www.sec.gov. SilverSun’s stockholders are also able to obtain, without charge, a
copy of the Special Meeting Proxy Statement and other relevant documents from SilverSun’s website at https://www.silversuntech.com
or by written request to SilverSun at 120 Eagle Rock Avenue, East Hanover, New Jersey 07936.
Participants in the Solicitation
JPE and SilverSun and its directors and executive officers may be deemed
to be participants in the solicitation of proxies from SilverSun’s stockholders with respect to the Equity Investment and the other
transactions contemplated by the Investment Agreement. The interests of SilverSun and its directors and executive officers with regard
to the Equity Investment may differ from the interests of SilverSun’s stockholders generally, and stockholders may obtain additional
information by reading the Special Meeting Proxy Statement and other relevant documents regarding the Equity Investment and the other
transactions contemplated by the Investment Agreement, when filed with the SEC. Information regarding the names of SilverSun’s directors
and executive officers and their respective interests in SilverSun by security holdings or otherwise is set forth in SilverSun’s
proxy statement for its 2023 Annual Meeting of Stockholders, filed with the SEC on November 27, 2023, in the sections captioned “Executive
Compensation” and “Director Compensation”, and in the Special Meeting Proxy Statement, filed with the SEC on April
30, 2024, in the section captioned “Security Ownership of Certain Beneficial Owners and Executive Officers and Directors of the
Company.”
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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.
|
SILVERSUN TECHNOLOGIES, INC. |
|
|
Date: May 28, 2024 |
By: |
/s/ Mark Meller |
|
|
Mark Meller |
|
|
President, Chief Executive Officer |
5
Exhibit 10.1
Jacobs Private Equity II, LLC
Five American Lane
Greenwich, CT 06831
Email: Austin.Landow@jpe.com
Attention: Austin Landow
May 28, 2024
| RE: | Amended and Restated Investment Agreement |
Ladies and Gentlemen:
Reference is made to that
certain Amended and Restated Investment Agreement (the “Agreement”), dated as of April 14, 2024, by and among SilverSun
Technologies, Inc. (the “Company”), Jacobs Private Equity II, LLC (the “Principal Investor”) and
the other investors party thereto (including any additional investors made party thereto by joinder) (collectively, together with the
Principal Investor, the “Investors”). For good and valuable consideration, and intending to be legally bound, the parties
agree that, notwithstanding anything to the contrary contained in the Agreement:
| 1. | Section 2.03(a) of the Agreement is hereby amended and restated in its entirety as follows: |
“As early as practicable on the
Closing Date and prior to the Closing, the Company shall file with the Secretary of State of the State of Delaware in accordance with
the Laws of the State of Delaware (i) the Fifth A&R Certificate of Incorporation, with effectiveness as of 9:00 a.m., New York Time,
on the Closing Date, and (ii) the Certificate of Designation, with effectiveness as of 9:02 a.m., New York Time, on the Closing Date.”
| 2. | The first sentence of Section 3.01(dd) of the Agreement is hereby amended and restated in its entirety
as follows: |
“Each of the Fifth A&R Certificate
of Incorporation and the Certificate of Designation with respect to the Preferred Stock (the “Certificate of Designation”)
has been duly adopted by the Company and the Board of Directors of the Company, and will be duly filed with the Secretary of State of
the State of Delaware in accordance with this Agreement and the Laws of the State of Delaware on the Closing Date. The Fifth A&R Certificate
of Incorporation will be effective as of 9:00 a.m., New York Time, on the Closing Date, and the Certificate of Designation will be effective
as of 9:02 a.m., New York Time, on the Closing Date.”
| 3. | Exhibit D of the Agreement is hereby amended and restated to be in the form of Annex A attached
to this letter agreement. |
Except as expressly provided
herein, the Agreement is not amended, supplemented, modified, revised or otherwise affected by this letter agreement. All references in
the Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein”
or words of like import, and each reference to the Agreement in any other agreements, documents or instruments executed and delivered
pursuant to or in connection with the Agreement shall be deemed to mean and be a reference to the Agreement as amended by this letter
agreement.
Sections 8.07, 8.10, 8.11
and 8.12 of the Agreement are incorporated by reference herein, mutatis mutandis.
Please acknowledge your understanding
of our agreement as set forth herein by signing this letter agreement in the space provided below and returning a copy to the undersigned.
This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
[Remainder of page left intentionally blank]
|
Very truly yours, |
|
|
|
SILVERSUN TECHNOLOGIES, INC. |
|
|
|
By: |
/s/ Mark Meller |
|
Name: |
Mark Meller |
|
Title: |
Chief Executive Officer |
Accepted and agreed to as of |
|
the date set forth above: |
|
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JACOBS PRIVATE EQUITY II, LLC |
|
|
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By: |
/s/ Brad Jacobs |
|
Name: |
Brad Jacobs |
|
Title: |
Managing Member |
|
|
|
PRINCIPAL INVESTOR: |
|
|
|
JACOBS PRIVATE EQUITY II, LLC |
|
(on behalf of the other Investors) |
|
|
|
By: |
/s/ Brad Jacobs |
|
Name: |
Brad Jacobs |
|
Title: |
Managing Member |
|
CC:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Email: AOEmmerich@wlrk.com; VSapezhnikov@wlrk.com
Attention: Adam O. Emmerich; Viktor Sapezhnikov
Lucosky Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, NJ 08830
Email: jlucosky@lucbro.com; chaunschild@lucbro.com
Attention: Joseph Lucosky; Chris Haunschild
Annex A
(See Attached)
FORM OF
FIFTH AMENDED and
restated
CERTIFICATE OF INCORPORATION
OF
SILVERSUN TECHNOLOGIES, INC.
SilverSun Technologies, Inc. (the “Corporation”),
a corporation organized and existing under the laws of the State of Delaware, pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, as it may be amended (the “DGCL”), hereby certifies as follows:
| 1. | The name of this Corporation is SilverSun Technologies, Inc.
The original Certificate of Incorporation was filed with the office of the Secretary of State of the State of Delaware on October 3,
2002 under the name iVoice Acquisition 1, Inc. |
| 2. | A Certificate of Amendment to the original Certificate of
Incorporation was filed with the office of the Secretary of State of the State of Delaware on April 24, 2003 under the name Trey Industries,
Inc. |
| 3. | An Amended and Restated Certificate of Incorporation was
filed with the office of the Secretary of State of the State of Delaware on May 30, 2003 under the name Trey Industries, Inc. |
| 4. | A Second Amended and Restated Certificate of Incorporation
was filed with the office of the Secretary of State of the State of Delaware on September 5, 2003. |
| 5. | A Third Amended and Restated Certificate of Incorporation
was filed with the office of the Secretary of State of the State of Delaware on February 11, 2004. |
| 6. | A Fourth Amended and Restated Certificate of Incorporation
was filed with the office of the Secretary of State of the State of Delaware on June 27, 2011 under the name SilverSun Technologies,
Inc. |
| 7. | A Certificate of Amendment to the Fourth Amended and Restated
Certificate of Incorporation was filed with the office of the Secretary of State of the State of Delaware on January 29, 2015. |
| 8. | Certificates of Elimination with respect to the Corporation’s
previously issued Series A Preferred Stock and the Corporation’s previously issued Series B Preferred Stock were filed with the
office of the Secretary of State of the State of Delaware on November 30, 2023 and September 9, 2019, respectively. |
| 9. | In connection with the transactions contemplated by the Amended
and Restated Investment Agreement, dated as of April 14, 2024 (the “Investment Agreement”), by and among the Corporation,
Jacobs Private Equity II, LLC (the “Principal Investor”) and the other parties thereto, this Fifth Amended and Restated
Certificate of Incorporation (this “Amended and Restated Certificate of Incorporation”) was duly adopted by the Board
of Directors of the Corporation (the “Board of Directors”) in accordance with the provisions of Sections 242 and 245
of the DGCL, and by the affirmative vote of a majority of its stockholders at a special meeting in accordance with Section 211 of the
DGCL, and is to become effective as of 9:00 a.m., Eastern time, on June 6, 2024. |
| 10. | This Amended and Restated Certificate of Incorporation restates and amends the Fourth Amended and Restated Certificate of Incorporation
(as amended) to read in its entirety as follows: |
ARTICLE 1
NAME OF CORPORATION
The name of the Corporation is SilverSun Technologies, Inc.
ARTICLE 2
REGISTERED OFFICE; REGISTERED AGENT
The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of the registered
agent of the Corporation at such address is The Corporation Trust Company. The Corporation may have such other offices, either inside
or outside of the State of Delaware, as the Board of Directors may designate or as the business of the Corporation may from time to time
require.
ARTICLE 3
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the DGCL.
ARTICLE 4
STOCK
Section 1. Authorized Stock. The total
number of authorized shares of capital stock of the Corporation shall be 2,010,000,000 shares, consisting of (i) 2,000,000,000 shares
of common stock, par value $0.00001 per share (the “Common Stock”), and (ii) 10,000,000 shares of preferred stock,
par value $0.001 per share (the “Preferred Stock”). For the avoidance of doubt, this Section 1 gives effect to, and
will not be affected by, the reverse stock split contemplated by Section 4 of this ARTICLE 4.
Section 2. Common Stock.
(a) Except
as otherwise provided by law, by this Amended and Restated Certificate of Incorporation, or by the resolution or resolutions adopted by
the Board of Directors designating the rights, powers and preferences of any series of Preferred Stock, the holders of outstanding shares
of Common Stock shall have the right to vote on all matters, including the election of directors, to the exclusion of all other stockholders,
and holders of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which they are not entitled to
vote (except where otherwise provided in the certificate of designations governing such series). Each holder of record of Common Stock
shall be entitled to one vote for each share of Common Stock standing in the name of the stockholder on the books of the Corporation.
(b) Subject
to any rights granted to holders of shares of any class or series of Preferred Stock then outstanding, the holders of shares of Common
Stock shall be entitled to receive such dividends and other distributions in cash, property, stock or otherwise as may be declared thereon
by the Board of Directors at any time and from time to time out of assets or funds of the Corporation legally available therefor and shall
share equally on a per share basis in such dividends and distributions.
(c) In the
event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment
of the debts and other liabilities of the Corporation, and subject to any rights granted to holders of shares of any class or series of
Preferred Stock then outstanding, the holders of shares of Common Stock shall be entitled to receive all of the remaining assets of the
Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.
Section 3. Preferred Stock. Shares of
Preferred Stock may be authorized and issued in one (1) or more series. The Board of Directors (or any committee to which it may
duly delegate the authority granted in this ARTICLE 4) is hereby empowered, by resolution or resolutions, to authorize the
issuance from time to time of shares of Preferred Stock in one (1) or more series, for such consideration and for such corporate
purposes as the Board of Directors (or such committee thereof) may from time to time determine, and by filing a certificate pursuant
to applicable law of the State of Delaware as it presently exists or may hereafter be amended to establish from time to time for
each such series the number of shares to be included in each such series and to fix the designations, powers, rights and preferences
of the shares of each such series, and the qualifications, limitations and restrictions thereof to the fullest extent now or
hereafter permitted by this Amended and Restated Certificate of Incorporation and the laws of the State of Delaware, including,
without limitation, voting rights (if any), dividend rights, dissolution rights, conversion rights, exchange rights and redemption
rights thereof, as shall be stated and expressed in a resolution or resolutions adopted by the Board of Directors (or such committee
thereof) providing for the issuance of such series of Preferred Stock. Each series of Preferred Stock shall be distinctly
designated. The authority of the Board of Directors with respect to each series of Preferred Stock shall include, but not be limited
to, determination of the following:
(a) the
designation of the series, which may be by distinguishing number, letter or title;
(b) the
number of shares of the series, which number the Board of Directors may thereafter (except where otherwise provided in the certificate
of designations governing such series) increase or decrease (but not below the number of shares thereof then outstanding);
(c) the
amounts payable on, and the preferences, if any, of shares of the series in respect of dividends, and whether such dividends, if any,
shall be cumulative or noncumulative;
(d) the
dates at which dividends, if any, shall be payable;
(e) the
redemption rights and price or prices, if any, for shares of the series;
(f) the
terms and amount of any sinking fund provided for purchase or redemption of shares of the series;
(g) the
amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation;
(h) whether
shares of the series shall be convertible into or exchangeable for shares of any other class or series, or any other security, of the
Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion
or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or
exchangeable and all other terms and conditions upon which such conversion or exchange may be made;
(i) the
restrictions on the issuance of shares of the same series or of any other class or series; and
(j) the
voting rights, if any, of the holders of shares of the series.
Section 4. Reverse Stock Split. Upon
effectiveness of this Amended and Restated Certificate of Incorporation (the “Effective Time”), each eight (8)
shares of the Common Stock then issued and outstanding or held by the Corporation as treasury stock shall, automatically and without
any action on the part of the respective holders thereof, be combined and converted into one (1) share of Common Stock, without
increasing or decreasing the par value of each share of Common Stock. No fractional shares shall be issued in connection with the
foregoing combination and conversion and, in lieu thereof, any holder of Common Stock otherwise entitled to a fraction of a share of
Common Stock shall, (i) in the case of a registered holder who holds Common Stock in book-entry form with the Corporation’s
transfer agent, without further action on the part of such holder, and (ii) in the case of a registered holder who holds Common
Stock in certificated form, upon delivery of a properly completed and duly executed transmittal letter from such holder and the
surrender of such holder’s stock certificates, be entitled to receive cash for such holder’s fractional share based upon
the net proceeds attributable to the sale of such fractional share following the aggregation and sale by the Corporation’s
exchange agent of all fractional shares otherwise issuable. Each certificate and book-entry notation that immediately prior to the
Effective Time represented shares of Common Stock (“Old Certificates”) shall thereafter represent that number of
whole shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined,
subject to the treatment of fractional share interests as described above.
ARTICLE 5
TERM
The term of existence of the Corporation shall be perpetual.
ARTICLE 6
BOARD OF DIRECTORS
Section 1. Number of Directors. Subject
to any rights of the holders of any series of Preferred Stock and the rights set forth in Section 7 of this ARTICLE 6, the
number of directors which shall constitute the Board of Directors shall be fixed from time to time exclusively pursuant to a
resolution adopted by the affirmative vote of a majority of the total number of directors that the Corporation would have if there
were no vacancies (the “Whole Board”).
Section 2. Term; Election of Directors.
Subject to the rights of the holders of any series of Preferred Stock and the rights set forth in Section 7 of this ARTICLE
6, at each annual meeting of stockholders, the directors shall be elected for terms expiring at the next annual meeting of
stockholders. Each director shall hold office for the term for which he or she is elected or appointed and until his or her
successor shall be elected and qualified or until his or her earlier death, resignation, retirement, disqualification, or removal
from office. Unless and except to the extent that the Amended and Restated Bylaws of the Corporation (as may hereafter be amended,
the “Bylaws”) shall so require, the election of directors of the Corporation need not be by written ballot.
Advance notice of stockholder nominations for the election of directors shall be given in the manner and to the extent provided in
the Bylaws.
Section 3. Newly Created Directorships and
Vacancies. Subject to applicable law and the rights of the holders of any series of Preferred Stock with respect to such series
of Preferred Stock and the rights set forth in Section 7 of this ARTICLE 6, and unless the Board of Directors otherwise
determines, vacancies resulting from death, resignation, retirement, disqualification, removal from office or other cause, and newly
created directorships resulting from any increase in the authorized number of directors, may be filled only by the affirmative vote
of a majority of the remaining directors, though less than a quorum of the Board of Directors, or by a sole remaining director, and
directors so chosen shall hold office until the next annual meeting of stockholders and until his or her successor shall have been
duly elected and qualified or until any such director’s earlier death, resignation, removal, retirement or disqualification.
No decrease in the number of authorized directors constituting the Whole Board shall shorten the term of any incumbent director.
Section 4. Removal of Directors. Subject
to the rights of the holders of any series of Preferred Stock and the rights set forth in Section 7 of this ARTICLE 6, any
director(s) of the Corporation may be removed from office, with or without cause, at any time by the affirmative vote of the holders
of at least a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class (the “Voting Stock”).
Section 5. Rights of Holders of Preferred
Stock. Notwithstanding the provisions of this ARTICLE 6, whenever the holders of one (1) or more series of Preferred
Stock issued by the Corporation shall have the right, voting separately or together by series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorship shall be
governed by the rights of such Preferred Stock as set forth in the certificate of designations governing such series.
Section 6. No Cumulative Voting. Except
as may otherwise be set forth in the resolution or resolutions of the Board of Directors providing the issuance of a series of Preferred
Stock, and then only with respect to such series of Preferred Stock, cumulative voting in the election of directors is specifically denied.
Section 7. Board Representation
Rights.
(a) Effective
as of the Closing (as defined in the Investment Agreement), the Board of Directors shall be reconstituted (and the Corporation and the
Board of Directors shall cause such reconstitution to occur) such that (i) the number of seats on the Board of Directors shall be as directed
by the Principal Investor, (ii) each of such directors (including Brad Jacobs) shall be a person designated by the Principal Investor,
(iii) each standing committee of the Board of Directors shall be reconstituted in a manner designated by the Principal Investor and
(iv) Brad Jacobs shall be appointed as the Chairman of the Board of Directors and Chief Executive Officer of the Corporation. The foregoing
designations shall be made such that a majority of the Board of Directors and the members of each standing committee of the Board of Directors
shall be independent as required in accordance with Nasdaq Stock Market LLC rules (or the rules of any other exchange on which the Corporation’s
securities are then listed) and applicable securities laws. Each director designated by the Principal Investor in accordance with this
Section 7 of this ARTICLE 6 is referred to herein as an “Principal Investor Appointee.”
(b) Subject
to Sections 7(d), 7(e) and 7(f) of this ARTICLE 6, in connection with each meeting of stockholders at which
directors are to be elected to serve on the Board of Directors, the Corporation shall take all necessary steps to nominate each Principal
Investor Appointee (or such alternative persons who are proposed by the Principal Investor and notified to the Corporation on or prior
to any date set forth in applicable law with respect to the nomination of directors) and to use its reasonable best efforts to cause the
Board of Directors to unanimously recommend that the stockholders of the Corporation vote in favor of each Principal Investor Appointee
for election to the Board of Directors. If, for any reason, a candidate designated as an Principal Investor Appointee is determined to
be unqualified to serve on the Board of Directors because such appointment would constitute a breach of the fiduciary duties of the Board
of Directors or applicable law or stock exchange requirements, the Principal Investor shall have the right to designate an alternative
Principal Investor Appointee to be so appointed, and the provisions of this Section 7(b) of this ARTICLE 6 shall apply,
mutatis mutandis, to such alternative Principal Investor Appointee.
(c) Each
appointed or elected Principal Investor Appointee will hold his or her office as a director of the Corporation for such term as is provided
in Section 2 of this ARTICLE 6 or until his or her death, resignation or removal from the Board of Directors or until his
or her successor has been duly elected and qualified in accordance with the provisions of this Article VI. If any Principal Investor
Appointee ceases to serve as a director of the Corporation for any reason during his or her term, the Corporation will use its reasonable
best efforts to cause the Board of Directors to fill the vacancy created thereby with a replacement designated by the Principal Investor.
(d) Following
the Closing, subject to applicable law and applicable stock exchange requirements, the Principal Investor shall have the right to designate
persons to the Board of Directors, who shall be Principal Investor Appointees hereunder, as follows: (i) all of the members of the Board
of Directors for so long as the Investors (as defined in the Investment Agreement) collectively own or control (together with their affiliates)
Preferred Stock, Company Common Stock (as defined in the Investment Agreement) or other voting securities, or Warrants (as defined in
the Investment Agreement) exercisable for such securities, representing, in the aggregate, at least eighty percent (80%) of the total
voting power of the capital stock of the Corporation, calculated on a fully-diluted, as-converted basis, (ii) seventy-five percent (75%)
of the total number of seats (rounded up to the nearest whole number) on the Board of Directors for so long as the Investors collectively
own or control (together with their affiliates) Preferred Stock, Company Common Stock or other voting securities, or Warrants exercisable
for such securities, representing, in the aggregate, at least sixty-five percent (65%) (but less than eighty percent (80%)) of the total
voting power of the capital stock of the Corporation, calculated on a fully-diluted, as-converted basis, (iii) a majority of the total
number of seats (rounded up to the nearest whole number) on the Board of Directors for so long as the Investors collectively own or control
(together with their affiliates) Preferred Stock, Company Common Stock or other voting securities, or Warrants exercisable for such securities,
representing, in the aggregate, at least forty-five percent (45%) (but less than sixty-five percent (65%)) of the total voting power of
the capital stock of the Corporation, calculated on a fully-diluted, as-converted basis, (iv) forty percent (40%) of the total number
of seats (rounded up to the nearest whole number) on the Board of Directors for so long as the Investors collectively own or control (together
with their affiliates) Preferred Stock, Company Common Stock or other voting securities, or Warrants exercisable for such securities,
representing, in the aggregate, at least thirty percent (30%) (but less than forty-five percent (45%)) of the total voting power of the
capital stock of the Corporation, calculated on a fully-diluted, as-converted basis, (v) thirty-three percent (33%) of the total number
of seats (rounded up to the nearest whole number) on the Board of Directors for so long as the Investors collectively own or control (together
with their affiliates) Preferred Stock, Company Common Stock or other voting securities, or Warrants exercisable for such securities,
representing, in the aggregate, at least fifteen (15%) (but less than thirty percent (30%)) of the total voting power of the capital stock
of the Corporation, calculated on a fully-diluted, as-converted basis, and (vi) two members of the Board of Directors for so long as the
Investors collectively own or control (together with their affiliates) Preferred Stock, Company Common Stock or other voting securities,
or Warrants exercisable for such securities, representing, in the aggregate, at least five percent (5%) (but less than fifteen percent
(15%)) of the total voting power of the capital stock of the Corporation, calculated on a fully-diluted, as converted basis.
(e) The
Board of Directors shall have no obligation to appoint or nominate any Principal Investor Appointee if such appointment or nomination
would violate applicable Law or stock exchange requirements or result in a breach by the Board of Directors of its fiduciary duties to
its stockholders; provided, that the foregoing shall not affect the right of the Principal Investor to designate an alternate Principal
Investor Appointee.
(f) The
rights of the Principal Investor set forth in this Section 7 of this ARTICLE 6 shall be in addition to, and not in limitation
of, such voting rights that the Principal Investor may otherwise have as a holder of capital stock of the Corporation (including any shares
of Preferred Stock held by the Principal Investor).
ARTICLE 7
STOCKHOLDER ACTION
Section 1. Stockholder Action by Written Consent.
Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any action required
or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders
of the Corporation and may not be effected by any consent in writing by such stockholders; provided that, if the Investors and
their Affiliates (as such terms are defined in the Investment Agreement) collectively beneficially own at least 30% of the voting power
of the outstanding shares of Voting Stock, then stockholders of the Corporation may act by written consent in
lieu of a meeting to the extent permitted by the DGCL and in the manner provided in the Bylaws.
Section 2. Special Meetings of Stockholders.
Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, special meetings
of stockholders may only be called by or at the direction of (1) the Chair of the Board of Directors, (2) the Lead Independent Director
(if one has been appointed), or (3) the Board of Directors pursuant to a resolution adopted by a majority of the Whole Board, and any
power of stockholders to call a special meeting is specifically denied. At any special meeting of stockholders, only such business shall
be conducted or considered as shall have been properly brought before the meeting pursuant to the Corporation’s notice of meeting.
ARTICLE 8
DIRECTOR AND OFFICER LIABILITY
To the fullest extent permitted by the DGCL, as the same exists or
may hereafter be amended, a director or officer of the Corporation shall not be personally liable either to the Corporation or to any
of its stockholders for monetary damages for breach of fiduciary duty as a director or officer. If the DGCL is amended after the filing
of this Amended and Restated Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability
of directors or officers, then the liability of a director or officer of the Corporation, in addition to the limitation on personal liability
provided herein, will be limited to the fullest extent permitted by that law, as so amended. Any repeal or modification of this ARTICLE
8 by the stockholders of the Corporation will be prospective only and will not adversely affect any limitation on the personal liability
of a director or officer of the Corporation existing at the time of that repeal or modification.
ARTICLE 9
INDEMNIFICATION
Section 1. In General. Each person who
was or is a party or is otherwise threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter, a “Proceeding”), by reason of the fact
that he or she or a person of whom he or she is the legal representative is or was, at any time during which this ARTICLE 9
is in effect (whether or not such person continues to serve in such capacity at the time any indemnification or advancement of
expenses pursuant hereto is sought or at the time any Proceeding relating thereto exists or is brought), a director or officer of
the Corporation or, while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation (hereinafter, a
“Covered Person”), shall be (and shall be deemed to have a contractual right to be) indemnified and held harmless
by the Corporation (and any successor of the Corporation by merger or otherwise) to the fullest extent authorized by the DGCL as the
same exists or may hereafter be amended or modified from time to time (but, in the case of any such amendment or modification, only
to the extent that such amendment or modification permits the Corporation to provide greater indemnification rights than said law
permitted the Corporation to provide prior to such amendment or modification), against all expense, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred or suffered by such person in connection with such Proceeding if the person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any Proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the
person’s conduct was unlawful. Such indemnification shall continue as to a person who has ceased to be a director or officer
of the Corporation or ceased serving at the request of the Corporation as a director, officer, trustee, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans
maintained or sponsored by the Corporation, and shall inure to the benefit of his or her heirs, executors and administrators; provided
that, except as provided in Section 3 of this ARTICLE 9, the Corporation shall indemnify any such person seeking
indemnification in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof)
was authorized by the Board of Directors.
Section 2. Mandatory Advancement of Expenses.
To the fullest extent authorized by the DGCL as the same exists or may hereafter be amended or modified from time to time (but, in the
case of any such amendment or modification, only to the extent that such amendment or modification permits the Corporation to provide
greater rights to advancement of expenses than said law permitted the Corporation to provide prior to such amendment or modification),
each Covered Person shall have (and shall be deemed to have a contractual right to have) the right, without the need for any action by
the Board of Directors, to be paid by the Corporation (and any successor of the Corporation by merger or otherwise) the expenses incurred
in connection with any Proceeding in advance of its final disposition, such advances to be paid by the Corporation within twenty (20) days
after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances from time to time;
provided that if the DGCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not, except to the extent specifically required by applicable law, in any other capacity in which service was
or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter, the “Undertaking”) by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there
is no further right of appeal (a “final disposition”) that such director or officer is not entitled to be indemnified for
such expenses under this ARTICLE 9 or otherwise.
Section 3. Claims. If a claim for indemnification
under this ARTICLE 9 is not paid in full by the Corporation within thirty (30) days after a written claim has been received by
the Corporation, or if a request for advancement of expenses under Section 2 of this ARTICLE 9 is not paid in full by the Corporation
within twenty (20) days after a statement pursuant to Section 2 of this ARTICLE 9 and the required Undertaking, if any, have been
received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of
the claim for indemnification or request for advancement of expenses and, if successful, in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to any such action that, under the DGCL, the claimant has
not met the standard of conduct which makes it permissible for the Corporation to indemnify the claimant for the amount claimed or that
the claimant is not entitled to the requested advancement of expenses, but (except where the required Undertaking, if any, has not been
tendered to the Corporation) the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including
its Disinterested Directors (as defined in the Bylaws of the Corporation), Independent Counsel (as defined in the Bylaws of the Corporation)
or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper
in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by
the Corporation (including its Disinterested Directors, Independent Counsel or stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of
conduct.
Section 4. Contract Rights; Amendment and Repeal;
Non-Exclusivity of Rights.
(a) All
of the rights conferred in this ARTICLE 9, as to indemnification, advancement of expenses and otherwise, shall be contract rights
between the Corporation and each Covered Person to whom such rights are extended that vest at the commencement of such Covered Person’s
service to or at the request of the Corporation and: (x) any amendment or modification of this ARTICLE 9 that in any way diminishes
or adversely affects any such rights shall be prospective only and shall not in any way diminish or adversely affect any such rights with
respect to such person; and (y) all of such rights shall continue as to any such Covered Person who has ceased to be a director or
officer of the Corporation or ceased to serve at the Corporation’s request as a director, officer, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, as described herein, and shall inure to the benefit of such
Covered Person’s heirs, executors and administrators.
(b) All
of the rights conferred in this ARTICLE 9, as to indemnification, advancement of expenses and otherwise: (i) shall not be
exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled or hereafter acquire
under any statute, provision of this Amended and Restated Certificate of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise both as to action in such person’s official capacity and as to action in another capacity while holding such
office; and (ii) cannot be terminated or impaired by the Corporation, the Board of Directors or the stockholders of the Corporation
with respect to a person’s service prior to the date of such termination.
Section 5. Insurance, Other Indemnification
and Advancement of Expenses.
(a) The
Corporation may maintain insurance, at its expense, to protect itself and any current or former director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
(b) The
Corporation may, to the extent authorized from time to time by the Board of Directors or the Chief Executive Officer, grant rights to
indemnification and rights to advancement of expenses incurred in connection with any Proceeding in advance of its final disposition,
to any current or former officer, employee or agent of the Corporation to the fullest extent permitted by applicable law.
Section 6. Severability. If any provision
or provisions of this ARTICLE 9 shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of this ARTICLE 9 (including, without limitation, each portion of any paragraph
of this ARTICLE 9 containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions
of this ARTICLE 9 (including, without limitation, each such portion of any paragraph of this ARTICLE 9 containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision
held invalid, illegal or unenforceable.
ARTICLE 10
AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by the DGCL,
and all rights herein are granted subject to this reservation.
ARTICLE 11
AMENDMENTS TO BYLAWS
In furtherance and not in limitation of the powers conferred by applicable
law, the Board of Directors is expressly authorized to adopt, amend, alter or repeal the Bylaws of the Corporation, without the assent
or vote of stockholders of the Corporation.
ARTICLE 12
EXCLUSIVE FORUM
Unless the Corporation consents in writing to the selection of an alternative
forum, the sole and exclusive forum for: (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action
asserting a claim for or based on a breach of a fiduciary duty owed by any current or former director or officer or other employee of
the Corporation to the Corporation or to the Corporation’s stockholders, including a claim alleging the aiding and abetting of such
a breach of fiduciary duty, (c) any action asserting a claim against the Corporation or any current or former director or officer or other
employee of the Corporation arising pursuant to any provision of the DGCL or this Certificate of Incorporation or the Bylaws (as either
may be amended from time to time), (d) any action asserting a claim related to or involving the Corporation that is governed by the internal
affairs doctrine, or (e) any action asserting an “internal corporate claim” as that term is defined in Section 115 of the
DGCL, shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction,
the federal court for the District of Delaware). Unless the Corporation consents in writing to the selection of an alternative forum,
the federal district courts of the United States shall be the exclusive forum for the resolution of any complaint asserting a cause of
action arising under the Securities Act of 1933, as amended. This exclusive forum provision does not apply to claims arising under the
Securities Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, the undersigned has duly executed this Amended
and Restated Certificate of Incorporation, this 6th day of June.
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