Item
5.03.
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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The
rights, preferences and privileges of the Series D Convertible Preferred Stock are set forth in a Certificate of Designation of Preferences,
Rights and Limitations of Series D Convertible Preferred Stock (the “Series D Certificate of Designation”), a copy of which
is attached as Exhibit 3.1 to this Current Report on Form 8-K. The rights, preferences and privileges of the Series D-1 Convertible Preferred
Stock are set forth in a Certificate of Designation of Preferences, Rights and Limitations of Series D-1 Convertible Preferred Stock
(the “Series D-1 Certificate of Designation”), a copy of which is attached as Exhibit 3.2 to this Current Report on Form
8-K.
The
Board of Directors of the Company approved each of the Series D Certificate of Designation and Series D-1 Certificate of Designation
on June 16, 2021, and each of the Series D Certificate of Designation and Series D-1 Certificate of Designation were filed with the Delaware
Secretary of State on June 17, 2021. The Series D Certificate of Designation and Series D-1 Certificate of Designation are the same,
other than certain key differences to account solely for the different conversion ratios for the holders of 2017 Notes who did not execute
an Amendment compared to the holders of Amended 2017 Notes and the holders of 2020 Notes.
Number
of Shares
The
Series D Certificate of Designation established and designated 12,374,000 shares of Series D Convertible Preferred Stock. The Series
D-1 Certificate of Designation established and designated 9,441,000 shares of Series D-1 Convertible Preferred Stock.
Rank
The
Series D Convertible Preferred Stock and the Series D-1 Convertible Preferred Stock rank pari passu with each other. The Series
D Convertible Preferred Stock and Series D-1 Convertible Preferred Stock rank senior to the Common Stock and any other class or series
of the Company’s capital stock, the terms of which do not provide that shares of such class rank senior to, or pari passu
with, the Series D Convertible Preferred Stock and Series D-1 Convertible Preferred Stock as to dividends and distributions upon a change
of control transaction, or the liquidation, winding-up and dissolution of the Company.
Dividends
The
Series D Convertible Preferred Stock and Series D-1 Convertible Preferred Stock do not have any dividend preference but are entitled
to receive, on a pari passu basis, dividends, if any, that are declared and paid on the Common Stock and any other class of the
Company’s capital stock that ranks junior or on par to the Series D Convertible Preferred Stock and Series D-1 Convertible Preferred
Stock.
Liquidation
Preference
Upon
the occurrence of the liquidation, winding-up or dissolution of the Company or certain mergers, corporate reorganizations or sales of
the Company’s assets (each, a “Company Event”), holders of Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock will be entitled to receive a liquidation preference before any distributions are made to holders of any other class
or series of the Company’s capital stock junior to the Series D Convertible Preferred Stock and Series D-1 Convertible Preferred
Stock. If a Company Event occurs within two years of June 20, 2021 (the “Date of Issuance”), the holders of Series D Convertible
Preferred Stock and Series D-1 Convertible Preferred Stock will receive for each share of Series D Convertible Preferred Stock and Series
D-1 Convertible Preferred Stock, respectively, an amount in cash equal to the Original Issue Price (as defined in the Series D Certificate
of Designation and Series D-1 Certificate of Designation, respectively) multiplied by four. If a Company Event occurs from and after
the second anniversary of the Date of Issuance, the holders of Series D Convertible Preferred Stock and Series D-1 Convertible Preferred
Stock will receive for each share of Series D Convertible Preferred Stock and Series D-1 Convertible Preferred Stock, respectively, an
amount in cash equal to the Original Issue Price multiplied by six. The Original Issue Price for the Series D Convertible Preferred Stock
is $0.2862, and the Original Issue Price for the Series D-1 Convertible Preferred Stock is $2.862.
Voting
Rights
Holders
of shares of Series D Convertible Preferred Stock and Series D-1 Convertible Preferred Stock will vote together with the holders of Common
Stock as a single class. Each share of Series D Convertible Preferred Stock carries the right to one vote per share. Each share of Series
D-1 Convertible Preferred Stock carries the right to 10 votes per share.
The
Company is not permitted to amend, alter or repeal its Certificate of Incorporation or Bylaws in a manner adverse to the relative rights,
preferences, qualifications, limitations or restrictions of the Series D Convertible Preferred Stock and Series D-1 Convertible Preferred
Stock without the affirmative vote of a majority of the votes entitled to be cast by holders of outstanding shares of Series D Convertible
Preferred Stock and Series D-1 Convertible Preferred Stock, voting together as a single class with each share of Series D Convertible
Preferred Stock and Series D-1 Convertible Preferred Stock having a number of votes equal to the number of shares of Common Stock then
issuable upon conversion of such share of Series D Convertible Preferred Stock and Series D-1 Convertible Preferred Stock.
Conversion
The
Series D Convertible Preferred Stock is convertible at the option of the holders thereof into shares of Common Stock based on a one-for-one
conversion ratio. The Series D-1 Convertible Preferred Stock is convertible at the option of the holders thereof into shares of Common
Stock based on a one-for-10 conversion ratio. The conversion ratio of the Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock is subject to adjustment for stock splits and combinations, recapitalizations, reclassifications, reorganizations, mergers
and consolidations. The Series D Convertible Preferred Stock and Series D-1 Convertible Preferred Stock will automatically convert into
shares of Common Stock upon the fifth anniversary of the Date of Issuance.
The
foregoing description of the Series D Certificate of Designation and Series D-1 Certificate of Designation does not purport to be complete
and is qualified in its entirety by reference to the Series D Certificate of Designation and Series D-1 Certificate of Designation, copies
of which are filed herewith as Exhibits 3.1 and 3.2, respectively, and incorporated herein by reference.