Holders of record of shares of common stock as of February 8, 2021 and holders of record of shares of Series A 10% convertible preferred stock as of February 8, 2021 and June 21, 2021 are entitled to receive notice of the Annual Meeting but are not entitled to vote those shares on any proposal considered at the Annual Meeting, except to the extent they continued to hold such shares of common stock as of the record date of June 21, 2021.
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Q:
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What does it mean for a broker or other nominee to hold shares in “street name”?
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A:
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If you beneficially own shares held in an account with a broker, bank or similar organization, that organization is the stockholder of record and is considered to hold those shares in “street name.” An organization that holds your beneficially owned shares in street name will vote in accordance with the instructions you provide. If you do not provide the organization with specific voting instructions with respect to a proposal, the organization’s authority to vote your shares will, under the rules of the NYSE American LLC Company Guide, depend upon whether the proposal is considered a “routine” or a non-routine matter.
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The organization generally may vote your beneficially owned shares on routine items for which you have not provided voting instructions to the organization. The only routine matter expected to be voted on at the Annual Meeting is the ratification of the charter amendment to increase the number of shares of authorized common stock (Proposal 2).
The organization generally may not vote on non-routine matters, which, for purposes of the Annual Meeting, consist of Proposals 1 and 3. Instead, it will inform the inspector of election that it does not have the authority to vote on those matters. This is referred to as a “broker non-vote.”
For the purpose of determining a quorum, the total number of putative shares (29,179,574) will be subtracted from the total number of shares present such that 36,679,575 shares or 83% of the total number of shares of common stock issued and outstanding as of the record date will need to be present at the meeting.
Vote Required for Election or Approval
Introduction
Our only voting securities are outstanding shares of common stock. As of the record date, which is 5 p.m., Eastern time, on June 21, 2021, there were outstanding 44,179,574 shares of common stock, each of which will be entitled to one vote on each proposal, resulting in a total of 44,179,574 votes capable of being cast on each proposal.
As described under “Proposal 2—Ratification of Charter Amendment to Increase Authorized Common Stock,” there may be uncertainty regarding the validity or effectiveness of the certificate of amendment to our restated certificate of incorporation filed with the Delaware Secretary of State on March 25, 2021, or the Share Increase Amendment, which was intended to increase the number of authorized shares of common stock from 15,000,000 to 100,000,000. To eliminate that uncertainty, and to determine whether a quorum is present and whether each proposal has been adopted at the Annual Meeting, we will instruct the inspector of elections to subtract the total number of “putative” shares of common stock (29,179,574) from (i) the total number of shares present for quorum purposes, and (ii) the total number of votes cast in favor of each proposal. We refer to such shares of common stock as putative stock because the board of directors cannot determine with certainty that such shares are valid. Only stockholders of record on the record date are entitled to vote at the Annual Meeting.
Only holders of record of common stock as of the record date will be entitled to vote at the Annual Meeting. A quorum for the transaction of business at the Annual Meeting will be met if at least 36,679,575 shares of common stock are present virtually or represented by proxy, which number represents approximately 83% of the common stock issued and outstanding as of the record date including all shares of putative stock.