Item
5.03. Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year.
On
August 31, 2020, the Company filed a Certificate of Designation with the Secretary of State of the State of Delaware
to authorize the issuance of up to 50,000 shares of Series N Preferred Stock. The following is a summary of certain
terms of the Series N Preferred Stock.
General.
The Company’s Board of Directors has designated 50,000 shares of the 5,000,000 authorized shares of preferred stock
as the Series N Preferred Stock. Each share of the Series N Preferred Stock has a stated value of $1,000.
Voting
Rights. Except as provided below or by law, the Series N Preferred Stock
shall have no voting rights. However, as long as any shares of Series N Preferred Stock are outstanding, the Company shall not,
without the affirmative vote of the holders of a majority of the then outstanding shares of the Series N Preferred Stock, (a) alter
or change adversely the powers, preferences or rights given to the Series N Preferred Stock or alter or amend the Certificate of
Designation, (b) amend its certificate of incorporation or other charter documents in any manner that adversely affects any rights
of the holders, (c) increase the number of authorized shares of the Series N Preferred Stock, or (d) enter into any agreement with
respect to any of the foregoing.
Dividends.
Dividends at the rate per annum of 10% of the stated value per share shall accrue on each outstanding share of Series N
Preferred Stock from and after the date of the original issuance of such share of Series N Preferred Stock (the “Preferred
Accruing Dividends”). The Preferred Accruing Dividends shall accrue from day to day, whether or not declared, and shall
be cumulative and non-compounding; provided, however, that such Preferred Accruing Dividends shall be payable only
when, as, and if declared by the Board of Directors. No cash dividends shall be paid on the common stock unless the Preferred
Accruing Dividends are paid.
Rank.
The Series N Preferred Stock ranks with respect to dividends or a liquidation, (i) on parity with the common stock, the
Company’s Series H Convertible Preferred Stock, the Company’s Series L Convertible Preferred Stock and the Company’s
Series M Convertible Preferred Stock, (ii) senior to the Company’s Series F Convertible Preferred Stock, and (iii) junior
to any other class or series of preferred stock of the Company afterwards created and ranking by its terms senior to the Preferred
Stock.
Conversion.
Each share of the Series N Preferred Stock is convertible into shares of the Company’s common stock, at any time
and from time to time, at the option of the holder, into that number of shares of common stock determined by dividing the stated
value of such share of Series N Preferred Stock, plus any accrued declared and unpaid dividends, by the conversion price.
The conversion price is equal to 90% of the lowest VWAP during the 10 trading days immediately prior to the conversion
date. Holders of the Series N Preferred Stock are prohibited from converting Series N Preferred Stock into shares
of common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% (or, upon
election of the holder, 9.99%) of the total number of shares of common stock then issued and outstanding. However, any holder
may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage
shall not be effective until 61 days after notice to the Company.
Liquidation
Preference. Upon any liquidation, dissolution or winding up of the Company, the holders of the Series N Preferred Stock
shall be entitled to receive an amount equal to the stated value of the Series N Preferred Stock, plus any accrued declared
and unpaid dividends thereon and any other fees or liquidated damages then due and owing thereon, for each share of the Series
N Preferred Stock before any distribution or payment shall be made on any junior securities.
Redemption.
At any time the Company shall have the right to redeem all, or any part, of the Series N Preferred Stock then outstanding. The
Series N Preferred Stock subject to redemption shall be redeemed by the Company in cash in an amount equal to the stated
value of the shares of the Series N Preferred Stock being redeemed plus all accrued declared and unpaid dividends.
The
foregoing description of the Series N Preferred Stock does not purport to be complete and is qualified by reference to
the Certificate of Designation of the Series N Preferred Stock, a copy of which is filed as Exhibit 3.25 to this Current
Report on Form 8-K and is incorporated herein by reference.