Item 5.03 |
Amendments to Articles of
Incorporation or Bylaws; Change in Fiscal Year. |
Series D Preferred Stock
On
July 15, 2022, the Company filed a Certificate of Designation of Preferences, Rights and Limitations with the Secretary of State of the
State of Delaware designating 150 shares out of the authorized but unissued shares of its preferred stock as Series D Preferred
Stock with a stated value of $1,000 per share (the “Series D Certificate of Designation”). The following is a summary of
the principal terms of the Series D Preferred Stock as set forth in the Series D Certificate of Designation:
Dividends
The holders of Series D Preferred
Stock will be entitled to dividends, on an as-if converted basis, equal to and in the same form as dividends actually paid on shares
of Common Stock, when and if actually paid.
Voting Rights
The shares of Series D Preferred
Stock has no voting rights, except the right to vote, with the holders of Common Stock, as a single class, on any resolution presented
to stockholders for the purpose of obtaining approval of a proposed amendment to the Company’s Amended and Restated Certificate
of Incorporation (the “Charter”), to effect a reverse split of the outstanding shares of the Common Stock at a ratio to be
determined (the “Reverse Split Amendment”), with each share of Series D Preferred Stock entitled to vote on an as-converted
basis (whether or not such conversion shares are then convertible and disregarding any limitations on conversion) (however, in only this
instance, the Series D Preferred Stock will be considered to convert at the Minimum Price (as defined in Nasdaq Listing Rule 5635(d))
immediately preceding the execution and delivery of the Purchase Agreement, or $0.1997 per share).
As long as any shares of
Series D Preferred Stock are outstanding, the Company may not, without the approval of a majority of the then outstanding shares of Series
D Preferred Stock (a) alter or change adversely the powers, preferences or rights of the Series D Preferred Stock, (b) increase the number
of authorized shares of Series D Preferred Stock, or (c) enter into any agreement with respect to any of the foregoing.
Liquidation
Upon any liquidation, dissolution
or winding-up of the Company, whether voluntary or involuntary (a “Liquidation”), the then holders of the Series D Preferred
Stock shall be entitled to receive out of the assets available for distribution to stockholders of the Company an amount equal to 100%
of the Stated Value and no more, prior and in preference to the Common Stock.
Conversion
The Series D Preferred Stock
is convertible into Common Stock at any time after the date on which the Reverse Split Amendment is filed and effective with the Secretary
of State of the State of Delaware (the “Reverse Stock Split Date”) at a conversion price of $0.15, subject to adjustment
as set forth in the Series D Certificate of Designation (the “Series D Conversion Price”). Upon conversion the shares of
Series D Preferred Stock will resume the status of authorized but unissued shares of preferred stock of the Company.
Conversion at the Option of the Holder
The Series D Preferred Stock
is convertible at the Series D Conversion Price at the option of the holder at any time and from time to time from and after the Reverse
Stock Split Date.
Mandatory Conversion
and Forced Conversion by the Company
On the Reverse Stock Split
Date or, if certain conditions are not satisfied on such date, on the first such date that such conditions are satisfied (but within
and no later than 90 trading days after the Reverse Stock Split Date), the Company may give notice requiring the holders to convert the
outstanding shares of Series D Preferred Stock into shares of Common Stock at the then-effective Series D Conversion Price on the 15th
day following such notice.
Any time after November 12,
2022, subject to the satisfaction of certain conditions, the Company has the right to provide written notice to the holders to cause
the holders to convert all or such part of their Series D Preferred Stock as specified in such notice into shares of Common Stock at
the then-effective Series D Conversion Price on the date of such notice provided that the Company may not give such a notice more than
once in any 60-day period and or within 60 days of a mandatory conversion pursuant to the provisions described in the previous paragraph.
Beneficial Ownership Limitation
The Series D Preferred Stock
cannot be converted to common stock if the holder and its affiliates would beneficially own more than 4.99% (or 9.99% at the election
of the holder) of the outstanding common stock. However, any holder may increase or decrease such percentage to any other percentage
not in excess of 9.99% upon notice to us, provided that any increase in this limitation will not be effective until 61 days after such
notice from the holder to us and such increase or decrease will apply only to the holder providing such notice.
Preemptive Rights
No holders of Series D Preferred
Stock will, as holders of Series D Preferred Stock, have any preemptive rights to purchase or subscribe for our common stock or any of
our other securities.
Redemption
The shares of Series D Preferred
Stock are not redeemable by the Company.
Trading Market
There is no established trading
market for any of the Series D Preferred Stock, and we do not expect a market to develop. We do not intend to apply for a listing for
any of the Series D Preferred Stock on any securities exchange or other nationally recognized trading system. Without an active trading
market, the liquidity of the Series D Preferred Stock will be limited.
Series E Preferred Stock
On
July 15, 2022, the Company filed a Certificate of Designation of Preferences, Rights and Limitations with the Secretary of State of the
State of Delaware designating 150 shares out of the authorized but unissued shares of its preferred stock as Series E Preferred
Stock with a stated value of $1,000 per share (the “Series E Certificate of Designation”). The following is a summary of
the principal terms of the Series E Preferred Stock as set forth in the Series E Certificate of Designation:
Dividends
The holders of Series E Preferred
Stock will be entitled to dividends, on an as-if converted basis, equal to and in the same form as dividends actually paid on shares
of common stock, when and if actually paid.
Voting Rights
The Series E Preferred Stock
has no voting rights, except the right to vote, with the holders of Common Stock and holders of Series D Preferred Stock, as a single
class, on the Reverse Stock Split Amendment. Each share of Series E Preferred Stock is entitled to 200,000,000 votes per share thereon;
provided, that such shares of Series E Preferred Stock will, to the extent cast on the proposal to adopt and approve the Reverse Stock
Split Amendment, be automatically and without further action of the holders voted in the same proportions as shares of Common Stock (excluding
any shares of Common Stock that are not voted), Series D Convertible Preferred Stock and any other issued and outstanding shares of preferred
stock of the Company having the right to vote thereon (other than the Series E Preferred Stock and shares of preferred stock not voted)
are voted on such proposal. As an example, if 50.5% of the outstanding shares of Common Stock and Series D Preferred Stock voted at the
meeting are voted in favor of the Reverse Split Amendment, the Company will count 50.5% of the votes cast by the holders of the Series
E Preferred Stock as votes in favor of the Reverse Split Amendment.
As long as any shares of
Series E Preferred Stock are outstanding, the Company may not, without the approval of a majority of the then outstanding shares of Series
E Preferred Stock (a) alter or change adversely the powers, preferences or rights of the Series E Preferred Stock, (b) increase the number
of authorized shares of Series E Preferred Stock, or (c) enter into any agreement with respect to any of the foregoing.
Liquidation
Upon any liquidation, dissolution
or winding-up of the Company, whether voluntary or involuntary (a “Liquidation”), the then holders of the Series E Preferred
Stock shall be entitled to receive out of the assets available for distribution to stockholders of the Company an amount equal to 100%
of the Stated Value and no more, prior and in preference to the Common Stock.
Conversion
The Series E Preferred Stock
is convertible into Common Stock at any time after the Reverse Stock Split Date at a conversion price of $0.15, subject to adjustment
as set forth in the Series E Certificate of Designation (the “Series E Conversion Price”). Upon conversion the shares of
Series D Preferred Stock will resume the status of authorized but unissued shares of preferred stock of the Company.
Conversion at the Option of the Holder
The Series E Preferred Stock
is convertible at the Series E Conversion Price at the option of the holder at any time and from time to time from and after the Reverse
Stock Split Date.
Mandatory Conversion
and Forced Conversion by the Company
On the Reverse Stock Split
Date or, if certain conditions are not satisfied on such date, on the first such date that such conditions are satisfied (but within
and no later than 90 trading days after the Reverse Stock Split Date), the Company may give notice requiring the holders to convert the
outstanding shares of Series E Preferred Stock into shares of Common Stock at the then-effective Series E Conversion Price on the 15th
day following such notice.
Any time after November 12,
2022, subject to the satisfaction of certain conditions, the Company has the right to provide written notice to the holders to cause
the holders to convert all or such part of their Series E Preferred Stock as specified in such notice into shares of Common Stock at
the then-effective Series E Conversion Price on the date of such notice provided that the Company may not give such a notice more than
once in any 60-day period and or within 60 days of a mandatory conversion pursuant to the provisions described in the previous paragraph.
Beneficial Ownership Limitation
The Series E Preferred Stock
cannot be converted to Common Stock if the holder and its affiliates would beneficially own more than 4.99% (or 9.99% at the election
of the holder) of the outstanding common stock.
However, any holder may increase
or decrease such percentage to any other percentage not in excess of 9.99% upon notice to us, provided that any increase in this limitation
will not be effective until 61 days after such notice from the holder to us and such increase or decrease will apply only to the holder
providing such notice.
Preemptive Rights
No holders of Series E Preferred
Stock will, as holders of Series E Preferred Stock, have any preemptive rights to purchase or subscribe for our common stock or any of
our other securities.
Redemption
The shares of Series E Preferred
Stock are not redeemable by the Company.
Trading Market
There is no established trading
market for any of the Series E Preferred Stock, and we do not expect a market to develop. We do not intend to apply for a listing for
any of the Series E Preferred Stock on any securities exchange or other nationally recognized trading system. Without an active trading
market, the liquidity of the Series E Preferred Stock will be limited.
The summaries above are not
intended to be complete and are qualified in their entirety by reference to the Series D Certificate of Designation and the Series E
Certificate of Designation, each of which is filed as an exhibit to this Form 8-K and is incorporated by reference herein.