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Item 5.03.
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Amendment to Certificate of Incorporation; Change in Fiscal Year.
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On March 5, 2020, the Company filed a Certificate
of Designation of Series 1 Preferred Stock in the State of Delaware to designate 10,000 shares of our preferred stock, par value
$0.01 per share, as Series 1 Preferred Stock.
The following is a description of the Series
1 Preferred Stock:
Ranking and Liquidation. Prior to
March 5, 2025 (the “Mandatory Conversion Date”), subject to applicable law and the rights of the holders of any outstanding
series of our preferred stock, in the event of a voluntary or involuntary liquidation, dissolution or winding up of the Company,
each share of Series 1 Preferred Stock (a “Preferred Share”) will be entitled to receive an amount in cash equal to
$2,734.09 per share (as may be adjusted for any dividends of Preferred Shares, subdivision of the outstanding Preferred Shares
or combination of the outstanding Preferred Shares), before any payment may be made to holders of our Common Stock or any outstanding
series of our preferred stock junior in liquidation preference to the Preferred Shares. In addition, prior to the Mandatory Conversion
Date, subject to applicable law and the rights of the holders of any outstanding series of our preferred stock, Preferred Shares
will be entitled to participate pro rata on an as-converted into common stock basis with all of our Common Stock in the distribution
of any remaining proceeds from the voluntary or involuntary liquidation, dissolution or winding up. After the Mandatory Conversion
Date, subject to applicable law and the rights of the holders of any outstanding series of our preferred stock, Preferred Shares
will not receive any preference and will only be entitled to participate pro rata on an as-converted into common stock basis with
all of our Common Stock in the distribution of any remaining proceeds from the voluntary or involuntary liquidation, dissolution
or winding up.
Conversion. Each Preferred Share
is convertible at any time at the option of the holder into 405.05 shares of our Common Stock (the “Conversion Rate”),
provided that the holder will be prohibited from converting Preferred Shares into shares of our Common Stock if, as a result of
such conversion, the holder, together with its affiliates, would beneficially own more than 9.9% of the total number of shares
of our Common Stock then issued and outstanding after giving effect to such conversion. On the Mandatory Conversion Date, each
Preferred Share will automatically convert into shares of our Common Stock at the Conversion Rate then in effect; provided, that
the Preferred Shares will not automatically convert shares of our Common Stock to the extent that, as a result of such conversion,
the holder, together with its affiliates, would beneficially own more than 9.9% of the total number of shares of our Common Stock
then issued and outstanding after giving effect to such conversion. Any Preferred Shares that remain outstanding after the Mandatory
Conversion Date as a result of such limitations will be convertible at any time thereafter, at the option of the holder, subject
to the beneficial ownership limitations in the Certificate of Designation of Series 1 Preferred Stock of the Company.
Voting Rights. Prior to the Mandatory
Conversion Date, except as provided by applicable law, each Preferred Share will be entitled to 301.98 votes (the “Voting
Rate”) on all matters on which stockholders are generally entitled to vote (provided that no holder of Preferred Shares will
be entitled to such number of votes in excess of such holder’s beneficial ownership limitation). Additionally, prior to the
Mandatory Conversion Date, the vote or written consent of holders of a majority of the outstanding Preferred Shares, voting separately
as a single class, will be required for certain amendments to our certificate of incorporation, to incur certain indebtedness other
than permitted indebtedness, to enter into certain affiliate transactions, to issue additional Preferred Shares and to issue any
capital stock senior or having parity in preference to the Preferred Shares, other than preferred shares that may be issued in
one or more financing transactions as an alternative to the Company incurring permitted indebtedness. After the Mandatory Conversion
Date, the Preferred Shares will have no voting rights, except as required by applicable law.
Dividends. Prior to the Mandatory
Conversion Date, the holders of Preferred Shares will not be entitled to participate in any dividends or distributions. After the
Mandatory Conversion Date, subject to the applicable law and the rights of the holders of any outstanding series of our preferred
stock, Preferred Shares will rank pari passu on an as-converted to common stock basis with all of our Common Stock as to dividends
and distributions. However, holders of Preferred Shares will not be entitled to participate in dividends consisting of shares of
our Common Stock or other securities convertible into or exercisable for shares of our Common Stock to the extent that, as a result
of such dividend, the holder, together with its affiliates, would beneficially own more than 9.9% of the total number of shares
of our Common Stock then issued and outstanding after giving effect to such dividend.
Anti-Dilution. The Conversion Rate
and the Voting Rate are subject to proportionate adjustment upon the issuance by the Company of stock dividends, stock splits,
and similar proportionately applied changes affecting the Company’s outstanding Preferred Shares.
Redemption.
At any time after March 5, 2021, the Company may redeem Preferred Shares by payment of an amount per Preferred Share equal to $13.50
(as may be adjusted for any dividends of Preferred Shares, subdivision of the outstanding Preferred Shares or combination of the
outstanding Preferred Shares) multiplied by the Conversion Rate then in effect; provided, that as to each holder of Preferred Shares,
the number of shares redeemed must be at least 25% of the Preferred Shares originally issued to such holder.
Rights as a Stockholder.
Except as otherwise provided in the Certificate of Designation of Series 1 Preferred Stock, or by virtue of such holder’s
ownership of shares of our Common Stock, the holders of Preferred Shares do not have the rights or privileges of holders of shares
of our Common Stock, until they convert their Preferred Shares.
Amendments.
Certain terms of the Series 1 Preferred Stock may be amended or modified with the vote or written consent of the holders of a majority
of the then-outstanding Preferred Shares.
The foregoing description of the Series
1 Preferred Stock is qualified in its entirety by reference to the full text of the Certificate of Designation of the Series 1
Preferred Stock, which is filed as Exhibit 3.1 to this Current Report and are incorporated by reference herein.