| Item 3.03 |
Material Modification to Rights of Security Holders.
|
On September 30, 2020, all outstanding shares of Class 1
common stock, par value $0.0001 per share, automatically converted
into the same number of shares of Class 2 common stock, par
value $0.0001 per share, pursuant to the terms of the Amended and
Restated Certificate of Incorporation (the “Certificate”) of
Tilray, Inc. (the “Company”). No additional Class 1 shares
will be issued following such conversion.
The conversion occurred pursuant to Article IV, Section D.5 of the
Certificate, which provided that each one share of Class 1
common stock would convert automatically, without any further
action, into one share of Class 2 common stock, par value
$0.0001 per share, at 5:00 p.m. in New York City, New York on the
first trading day falling after the date on which, at all times on
such date, the outstanding shares of Class 1 Common Stock
represent less than ten percent (10%) of the aggregate number of
shares of the then outstanding Class 1 common stock and
Class 2 common stock.
Also in accordance with Article IV, Section D.5 of the Certificate,
and as required by Section 243 of the Delaware General
Corporation Law, on October 1, 2020, the Company filed a
certificate with the Secretary of State of the State of Delaware
effecting the retirement and cancellation of the shares of
Class 1 common stock that were issued but not outstanding
following the conversion (the “Certificate of Retirement”).
Pursuant to Article IV, Section D.5(a) of the Certificate,
effective upon the filing of the Certificate of Retirement, the
obsolete references to Class 1 common stock in the Certificate
were eliminated.
The conversion had the following effects, among others, on the
holders of shares of Class 1 common stock:
Voting Power. Prior to
the conversion, holders of shares of Class 1 common stock were
entitled to cast ten votes per share on any matter submitted to a
vote of the Company’s stockholders. As a result of the
conversion, all holders of Class 2 common stock have only one
vote per share on all matters subject to a stockholder vote. In
addition, the provisions of the Certificate and Delaware law that
entitled the holders of shares of Class 2 and Class 1
common stock, in certain circumstances, to separate class voting
rights are no longer applicable as a result of the conversion.
Economic Interests. The
conversion had no impact on the economic interests of holders of
shares of Class 1 common stock, including with regard to
dividends, liquidation rights, treatment in connection with a
change of control or merger transaction and redemption.
Capitalization. The
conversion had no impact on the total number of the Company’s
issued and outstanding shares of capital stock; the shares of
Class 1 common stock converted into an equivalent number of
shares of Class 2 common stock. However, the Company’s total
number of authorized shares of capital stock was reduced from
760,000,000 to 743,333,333 to account for the elimination of the
16,666,667 shares of Class 1 common stock that were issued
prior to the conversion. The Company’s authorized capital stock
consists of 500,000,000 shares of Class 2 common stock,
233,333,333 shares of Class 1 common stock and 10,000,000
shares of preferred stock, par value $0.0001 per share. The
Company’s Certificate prohibits the issuance of any shares of
Class 1 common stock.
Resale of Common
Stock. Shares of Class 2 common stock may be sold
in the same manner as such shares and shares of Class 1 common
stock were previously sold prior to the conversion. The Company’s
affiliates and holders of any shares that constitute restricted
securities will continue to be subject to the restrictions
specified in Rule 144 promulgated under the Securities Act of 1933,
as amended.
| Item 5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
|
As described under Item 3.03, on October 1, 2020, the Company
filed the Certificate of Retirement with the Secretary of State of
the State of Delaware to retire and cancel the shares of
Class 1 common stock that were issued but not outstanding
following the conversion. Pursuant to Article IV, Section D.5(a) of
the Certificate, effective upon the filing of the Certificate of
Retirement, the obsolete references to Class 1 common stock in
the Certificate were eliminated.
The foregoing description of the Certificate of Retirement is a
summary only and is qualified in its entirety by reference to the
full text of the Certificate of Retirement, a copy of which is
attached as Exhibit 3.1 hereto, and the Certificate, a copy of
which is attached as Exhibit 3.2 hereto, which are incorporated by
reference into this Item 5.03.
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