SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth certain information regarding the beneficial ownership as of June 29, 2021 of our outstanding shares of Common
Stock and non-voting Series B Cumulative Preferred Stock held by (1) each person known to us to beneficially own more than 5% of any
class of the outstanding voting securities of the Company, (2) each of our directors and named executive officers (including our current
principal financial officer who joined the Company on May 13, 2021), and (3) all directors and executive officers of the Company as a
group. As of June 29, 2021, there were 12,518,922 shares of Common Stock outstanding and entitled to vote and 1,643,272 shares
of Series B Cumulative Preferred Stock outstanding.
The
shares beneficially owned by each stockholder is determined under rules issued by the Securities and Exchange Commission (the “SEC”)
and includes voting power (if applicable) or investment power with respect to securities. Under these rules, beneficial ownership
includes any shares as to which the individual or entity has sole or shared voting power (if applicable) or investment power. In computing
the number of shares beneficially owned by an individual or entity and the percentage ownership of that person, shares subject to options
or other rights held by such person that are currently exercisable or will become exercisable within 60 days are considered outstanding,
although these shares are not considered outstanding for purposes of computing the percentage ownership of any other person. Unless otherwise
indicated, the address of all listed stockholders is c/o FAT Brands Inc., 9720 Wilshire Blvd., Suite 500, Beverly Hills, California 90212.
Each of the stockholders listed below has sole voting power (if applicable) and sole investment power with respect to the shares beneficially
owned by such stockholder unless noted otherwise, subject to community property laws where applicable.
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|
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Common
Stock
Beneficially Owned
|
|
|
|
Series
B Preferred Stock
Beneficially Owned
|
|
Name of beneficial owner
|
|
|
Number
|
|
|
|
Percentage
|
|
|
|
Number
|
|
|
|
Percentage
|
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Greater than 5% Stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Fog Cutter Holdings, LLC
|
|
|
7,033,297
|
(1)
|
|
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56.1
|
%
|
|
|
74,449
|
|
|
|
4.5
|
%
|
ADW Capital Partner, L.P.
|
|
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739,323
|
(2)
|
|
|
5.9
|
%
|
|
|
-
|
|
|
|
-
|
|
Gregory Fortunoff and certain persons
|
|
|
802,886
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(3)
|
|
|
6.3
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%
|
|
|
1,113
|
|
|
|
*
|
|
Named Executive Officers and Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew A. Wiederhorn
|
|
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7,202,159
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(4)
|
|
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56.8
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%
|
|
|
105,429
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(11)
|
|
|
6.4
|
%
|
Kenneth J. Kuick
|
|
|
100,000
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(5)
|
|
|
*
|
|
|
|
2,000
|
|
|
|
*
|
|
Donald J. Berchtold
|
|
|
228,621
|
(6)
|
|
|
1.8
|
%
|
|
|
-
|
|
|
|
-
|
|
Gregg Nettleton
|
|
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25,620
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(6)
|
|
|
*
|
|
|
|
-
|
|
|
|
-
|
|
Squire Junger
|
|
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161,972
|
(7)
|
|
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1.3
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%
|
|
|
23,333
|
|
|
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1.4
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%
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James Neuhauser
|
|
|
138,673
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(8)
|
|
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1.1
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%
|
|
|
24,685
|
|
|
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1.5
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%
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Edward Rensi
|
|
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64,178
|
(9)
|
|
|
*
|
|
|
|
7,781
|
|
|
|
*
|
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All directors and executive
officers as a group (seven persons)
|
|
|
7,921,223
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(10)
|
|
|
61.5
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%
|
|
|
163,228
|
|
|
|
9.9
|
%
|
(1)
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Includes
warrants to purchase 19,148 shares of Common Stock.
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(2)
|
Based
on a Schedule 13G filed on February 16, 2021 by and on behalf of each of ADW Capital Partners,
L.P., ADW Capital Management, LLC and Adam D. Wyden, with an address at 1261 99th
St., Bay Harbor Islands, FL 33154. ADW Capital Management, LLC is the general
partner and investment manager of, and may be deemed to beneficially own securities owned by, ADW Capital Partners, L.P. Mr. Wyden
is the sole manager of, and may be deemed to beneficially own securities owned by, ADW Capital Management, LLC.
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(3)
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Includes
warrants to purchase 126,891 shares of Common Stock. Based in part on a Schedule 13D/A filed jointly on August 28, 2020 by
Gregory Fortunoff, Scott Fortunoff, Laurie Fortunoff, Jill Gerstenblatt and Darren Gerstenblatt, with an address at 49 West 37th
Street, New York, NY 10018. Each such person expressly disclaims beneficial ownership for all purposes of the shares of Common Stock
and/or Series B Preferred Stock beneficially owned by each other person.
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(4)
|
Includes
shares of Common Stock and warrants held by Fog Cutter Holdings, LLC. Mr. Wiederhorn shares voting and dispositive power over
such shares and warrants, but disclaims beneficial ownership except to the extent of his pecuniary interest therein. Mr. Wiederhorn
also beneficially holds directly 168,862 shares of Common Stock, comprised of 23,332 shares of Common Stock, options to purchase
an additional 25,530 shares of Common Stock that have vested or will vest within 60 days of the effective date of the disclosure,
and warrants that are exercisable for an additional 120,000 shares of Common Stock, including warrants for 100,000 shares owned by
Mr. Wiederhorn’s spouse, to which he disclaims beneficial ownership except to the extent of his pecuniary interest therein.
Does not include unvested options to purchase an additional 5,106 shares of Common Stock.
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(5)
|
Represents
an award of restricted stock vesting in three equal installments on the grant anniversary of May 18, 2021.
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(6)
|
Includes
options to purchase 25,530 shares of Common Stock that have vested or will vest within 60 days of the effective date of the
disclosure. Does not include unvested options to purchase an additional 5,106 shares of Common Stock.
|
(7)
|
Includes
options to purchase 30,636 shares of Common Stock that have vested or will vest within 60 days of the effective date of the
disclosure. Does not include unvested options to purchase an additional 45,954 shares of Common Stock. Includes warrants to
purchase 25,000 shares of Common Stock.
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(8)
|
Includes
options to purchase 30,636 shares of Common Stock that have vested or will vest within 60 days of the effective date of the
disclosure. Does not include unvested options to purchase an additional 45,954 shares of Common Stock. Includes warrants to
purchase 20,000 shares of Common Stock
|
(9)
|
Includes
options to purchase 30,636 shares of Common Stock that have vested or will vest within 60 days of the effective date of the
disclosure. Does not include unvested options to purchase an additional 45,954 shares of Common Stock.
|
(10)
|
Includes
options to purchase 168,498 shares of Common Stock that have vested or will vest within 60 days of the effective date
of the disclosure. Does not include unvested options to purchase an additional 153,180 shares of Common Stock. Includes
warrants to purchase 184,148 shares of Common Stock, 100,000 of which are owned by Mr. Wiederhorn’s spouse, to
which he disclaims beneficial ownership except to the extent of his pecuniary interest therein.
|
(11)
|
Includes shares of Series B Preferred
Stock held by Fog Cutter Holdings, LLC. Mr. Wiederhorn shares voting and dispositive power
over such shares but disclaims beneficial ownership except to the extent of his pecuniary
interest therein. Includes 20,000 shares of the Company’s Series B Preferred Stock
owned by Mr. Wiederhorn’s spouse, to which he disclaims beneficial ownership except
to the extent of his pecuniary interest therein.
|
*
Represents beneficial ownership of less than 1% of the class.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
information set forth in this Information Statement may contain forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that are intended to be covered by the “safe harbor” created by those sections. Forward-looking statements,
which are based on certain assumptions and describe our future plans, strategies and expectations, can generally be identified by the
use of forward-looking terms such as “believe,” “expect,” “may,” “will,” “should,”
“could,” “would,” “seek,” “intend,” “plan,” “goal,” “project,”
“estimate,” “anticipate” “strategy,” “future,” “likely” or other comparable
terms and references to future periods. All statements other than statements of historical facts included in this Information Statement
regarding the Company’s strategies, prospects, financial condition, operations, costs, plans and objectives are forward-looking
statements. Examples of forward-looking statements include, among others, statements that we make regarding the Company’s growth
strategies and future acquisitions.
Forward-looking
statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations
and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy
and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks
and changes in circumstances that are difficult to predict and many of which are outside of our control. Our actual results and financial
condition may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these
forward-looking statements. Important factors that could cause our actual results, financial condition to or intentions to take certain
corporate actions differ materially from those indicated in the forward-looking statements include, in addition to those described in
the “Risk Factors” and in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
sections in our Annual Report on Form 10-K for the fiscal year ended December 27, 2020. Any forward-looking statement in this Information
Statement is based only on information currently available to us and speaks only as of the date on which it is made. We undertake no
obligation to publicly update any forward-looking statement, whether written or oral that may be made from time to time, whether as a
result of new information, future developments or otherwise, except as may be required under applicable law. We anticipate that subsequent
events and developments will cause our views to change. You should read this Information Statement completely and with the understanding
that our actual future results may be materially different from what we expect. We qualify all of our forward-looking statements by these
cautionary statements.
DELIVERY
OF DOCUMENTS TO STOCKHOLDERS
Pursuant
to the rules of the SEC, we and the services that we employ to deliver communications to our stockholders are permitted to deliver to
two or more stockholders sharing the same address a single copy of this Information Statement. Upon written or oral request, we will
deliver a separate copy of the Information Statement to any stockholder at a shared address to which a single copy of the Information
Statement was delivered and who wishes to receive a separate copy of the Information Statement. Stockholders receiving multiple copies
of the Information Statement may likewise request that we deliver single copies of such documents in the future. Stockholders may notify
us of their requests by calling or writing us at:
FAT
Brands Inc.
9720
Wilshire Blvd., Suite 500
Beverly Hills, CA 90212
Telephone:
(310) 319-1850
Email:
contact@fatbrands.com
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and are required to file annual
reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and other information with the SEC. You may inspect
and copy these reports and other information without charge at the SEC’s website. The address of this site is http://www.sec.gov.
We will provide without charge to each person, including any beneficial owner, to whom this Information Statement is delivered, upon
his or her written or oral request, a copy of any or all documents referred to above. You may request copies of those documents from
FAT Brands Inc., 9720 Wilshire Blvd., Suite 500, Beverly Hills, California 90212. You also may contact us at (310) 319-1850 or
by email at contact@fatbrands.com or visit our website at www.fatbrands.com for copies of those documents. Our website
and the information contained on our website are not a part of this Information Statement, and you should not rely on any such information.
You should rely only on the information contained in this Information Statement.
APPENDIX
A
SECOND
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FAT
BRANDS INC.
(a
Delaware corporation)
ARTICLE
I
NAME
The
name of the corporation is FAT Brands Inc. (the “Corporation”).
ARTICLE
II
REGISTERED
OFFICE
The
address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The name of the registered agent of the corporation at such address is The Corporation Trust Company.
ARTICLE
III
PURPOSE
The
purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under
the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE
IV
STOCK
SECTION
4.01 Authorized Stock. The aggregate number of shares of all classes of capital stock which the Corporation shall have authority
to issue is Fifty-Six Million Six Hundred Thousand (56,600,000) shares, consisting of (i) Fifty Million (50,000,000) shares of Class
A Common Stock, par value $0.0001 per share (“Class A Common Stock”); (ii) One Million Six Hundred Thousand (1,600,000)
shares of Class B Common Stock, par value $0.0001 per share (“Class B Common Stock” and together with the Class A
Common Stock, “Common Stock”); and (iii) Five Million (5,000,000) shares of preferred stock, par value $0.0001 per
share (“Preferred Stock”).
Upon
this Second Amended and Restated Certificate of Incorporation of the Corporation (“Certificate of Incorporation”)
becoming effective pursuant to the DGCL (the “Effective Time”), and without any further action on the part of the
Corporation or its stockholders, each whole share of the Corporation’s common stock, $0.0001 par value per share, issued and outstanding
or held by the Corporation in treasury immediately prior to the Effective Time (the “Old Common Stock”) shall automatically
be reclassified, changed and converted into one fully paid and non-assessable share of Class A Common Stock, and certificates previously
representing shares of Old Common Stock shall represent the appropriate number of whole shares of Class A Common Stock, into which such
Old Common Stock shall have been reclassified, changed and converted pursuant to this Certificate of Incorporation.
SECTION
4.02 Common Stock.
(a)
Equal Status. Except as otherwise required by the DGCL or expressly provided in this Article IV, the powers, preferences and rights
of the Class A Common Stock and the Class B Common Stock, and the qualifications, limitations or restrictions thereof, shall be in all
respects identical.
(b)
Voting.
(i)
General. Except as otherwise provided (i) by the DGCL, (ii) by this Certificate of Incorporation, (iii) by Section 4.03 of this
Article IV, or (iv) by the terms of any certificate of designation with respect to any series of Preferred Stock, and subject to the
rights of the holders of shares of Preferred Stock, if any, at any annual or special meeting of the stockholders of the Corporation and
with respect to any action by written consent of the stockholders in lieu of a meeting, the entire voting power of the shares of the
Corporation shall be vested exclusively in the holders of the shares of Common Stock that are issued and outstanding and the holders
of shares of Class A Common Stock and Class B Common Stock shall at all times vote together as a single class; provided, however,
that, except as otherwise required by the DGCL, holders of shares of Common Stock shall not be entitled to vote on any amendment to this
Certificate of Incorporation that relates solely to the terms, number of shares, powers, designations, preferences or relative, participating,
optional or other special rights (including, without limitation, voting rights), or to qualifications, limitations or restrictions thereof,
of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together
with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation or pursuant to the DGCL.
The number of authorized shares of Class A Common Stock or Class B Common Stock may be increased or decreased (but not below the number
of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation
entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL.
(ii)
Class A Common Stock. Each holder of shares of Class A Common Stock shall be entitled to one (1) vote for each share of Class
A Common Stock held as of the applicable date on any matter that is submitted to a vote or for the consent of the stockholders of the
Corporation. So long as any shares of Class A Common Stock remain outstanding, and in addition to any vote required by law or any other
provision of this Certificate of Incorporation, the affirmative vote of the holders of a majority of the then outstanding shares of Class
A Common Stock, voting as a separate class, shall be required in order to amend (whether by merger, consolidation or otherwise) the Certificate
of Incorporation so as to (A) alter or change the powers, preferences or special rights of the shares of Class A Common Stock so as to
affect them adversely, (B) increase the voting rights of the Class B Common Stock or to alter, change or provide additional powers, preferences
or other special rights to the Class B Common Stock, or (C) increase the number of authorized shares of Class B Common Stock except in
the minimum amount necessary to accommodate a proportional split of outstanding shares of Class B Common Stock in compliance with Section
4.02(h).
(iii)
Class B Common Stock. Each holder of shares of Class B Common Stock shall be entitled to two thousand (2,000) votes for each share
of Class B Common Stock held as of the applicable date on any matter that is submitted to a vote or for the consent of the stockholders
of the Corporation.
(iv)
No Cumulative Voting. Neither the holders of shares of Class A Common Stock nor the holders of shares of Class B Common Stock
shall have cumulative voting rights.
(c)
Dividends and Other Distributions.
(i)
Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock and the provisions of this Section 4.02(c),
the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property
or capital stock of the Corporation) when, as and if declared thereon by the board of directors of the Corporation (the “Board
of Directors”) from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally
on a per share basis in such dividends and distributions. No dividend may be paid on one class of Common Stock unless a dividend is paid
simultaneously on the other class of Common Stock in accordance with this Section 4.02(c).
(ii)
If the Board of Directors determines to provide the record holders of one class of Common Stock the option to receive a dividend in cash
or in capital stock of the Corporation, the same option must be simultaneously provided to the other class of Common Stock.
(iii)
Dividends payable on the Common Stock only in shares of capital stock of the Corporation (or rights to acquire capital stock of the Corporation)
shall only be made as follows: (A) in shares of Class A Common Stock (or rights to acquire Class A Common Stock) to the record holders
of Class A Common Stock and to the record holders of Class B Common Stock equally on a per share basis; (B) solely in connection with
a proportionate dividend to effectuate a split of the Common Stock, in shares of Class A Common Stock to the record holders of Class
A Common Stock and in shares of Class B Common Stock to the record holders of Class B Common Stock; or (C) in any other authorized class
or series of capital stock of the Corporation (or rights to acquire any other authorized class or series of capital stock of the Corporation)
to the record holders of Class A Common Stock and to the record holders of Class B Common Stock equally on a per share basis.
(iv)
Whenever a dividend or distribution provided for in this Certificate of Incorporation shall be payable in non-cash property or shares
of capital stock of the Corporation, the value of such dividend or distribution shall be deemed to be the fair value of such non-cash
property or capital stock of the Corporation, as determined in good faith by the Board of Directors.
(v)
Notwithstanding the foregoing, the Board of Directors may declare and the Corporation may pay a one-time pro rata dividend on the Class
A Common Stock of 0.10 shares of Class B Common Stock promptly following the Effective Time in order to effectuate the recapitalization
of the Old Common Stock into shares of Class A Common Stock and Class B Common Stock.
(d)
Convertibility. Each share of Class B Common Stock shall automatically, without any further action on the part of the Corporation
or the holder thereof, convert into one (1) share of Class A Common Stock upon a date specified by the holders of a majority of the then
outstanding shares of Class B Common Stock (the “Final Conversion Date”). In the event of any conversion of the Class
B Common Stock pursuant to this Section 4.02(d), certificates which represented outstanding shares of Class B Common Stock prior to the
Final Conversion Date will thereafter be deemed to represent a like number of shares of Class A Common Stock and all shares of Class
B Common Stock so converted shall be retired and shall not be reissued by the Corporation. Except as described in this Section 4.02(d),
neither the Class A Common Stock nor the Class B Common Stock shall be convertible into another class of Common Stock or any other security
of the Corporation.
(e)
Mergers or Sales of Assets. The holders of Class A Common Stock shall be entitled to receive an amount and form of consideration
per share equal to or better than the per share consideration, if any, received by the holders of Class B Common Stock in any merger,
business combination or consolidation of the Corporation (whether or not the Corporation is the surviving entity) or any subsidiary of
the Corporation, or any sale, lease or exchange of all or substantially all of the assets of the Corporation or any subsidiary of the
Corporation (whether or not executed by way of a single transaction or a series of related transactions).
(f)
Liquidation or Dissolution. Upon the liquidation, dissolution or winding up of the Corporation, the holders of Class A Common
Stock and the holders of Class B Common Stock shall share ratably, on a per share basis, in the net assets of the Corporation available
for distribution to the holders of Common Stock. If any assets of the Corporation distributed to stockholders in connection with any
liquidation, dissolution, or winding up of the Corporation are other than cash, then the value of such assets shall be their fair value
as determined by the Board of Directors in good faith.
(g)
Repurchases. The Corporation shall have the power to purchase, repurchase, exchange, or otherwise acquire shares of either Class
A Common Stock or Class B Common Stock out of funds legally available therefore at any time for such consideration as the Board of Directors
determines in its business judgment, whether or not less consideration could be paid upon the purchase of the same number of shares of
another class of Common Stock. Notwithstanding the foregoing, if at any time in the future the Corporation publicly announces an issuer
self tender offer to concurrently purchase shares of both Class A Common Stock and Class B Common Stock, then the Corporation shall tender
to purchase Class A Common Stock at a per share price and on terms equal to or better than the per share price and terms tendered for
Class B Common Stock.
(h)
Subdivision, Combination and Reclassification of Shares. If the Corporation shall in any manner split or subdivide or combine
the outstanding shares of Class A Common Stock or Class B Common Stock, the outstanding shares of the other such class of Common Stock
shall be proportionally split, subdivided or combined in the same manner and on the same basis as the outstanding shares of the other
class of Common Stock have been split, subdivided or combined. Other than with respect to a reclassification in connection with a split,
subdivision or combination of shares of outstanding Common Stock as provided above, the holders of Class A Common Stock shall be entitled
to be treated identically to the holders of Class B Common Stock on a per share basis in any reclassification or recapitalization of
the Common Stock.
(i)
No Preemptive Rights. No holder of Class A Common Stock or Class B Common Stock shall, by reason of such holding, have any preemptive
right to subscribe to any additional issue of stock of any class or series of the Corporation or to any security of the Corporation convertible
into such stock.
(j)
Transfer Restrictions.
(i)
No Class B Holder shall be permitted to Transfer in one transaction or a series of related transactions shares of Class B Common Stock
in excess of 25% of the total outstanding shares of Class B Common Stock to any Person except (i) to such Class B Holder’s Permitted
Transferees, (ii) in the case of a Transfer involving cash consideration, pursuant to a Qualifying Tender Offer by such Person, (iii)
in the case of a merger, business combination or other transaction described in and complying with Section 4.02(e), or (iv) in the case
of a Transfer for solely non-cash consideration, either (x) pursuant to a Transferee Tender Offer consummated prior to or contemporaneously
with the consummation of such Transfer or (y) in the event such Transferee Tender Offer is not consummated, the Corporation, to the extent
permitted by applicable law, prior to or contemporaneously with the consummation of such Transfer, shall consummate a Qualifying Self-Tender
Offer. For the avoidance of doubt, in the case of a proposed Transfer pursuant to clause (iv) of this Section 4.02(j)(i), if a Transferee
Tender Offer is not consummated and the Corporation is not permitted by applicable law to consummate a Qualifying Self-Tender Offer,
no Transfer shall be permitted. Any Transfer in violation of this Section 4.02(j) shall be void ab initio.
(ii)
For purposes of this Section 4.02(j) only:
(A)
an “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used
with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition,
the terms “controlling” and “controlled by” have correlative meanings.
(B)
“Charitable Trust” shall mean a trust that is exempt from taxation under Section 501(c)(3) of the United States Internal
Revenue Code of 1986, as amended (or any successor provision thereto) (whether a determination letter with respect to such exemption
is issued before, at or after the Effective Time), and further includes any successor entity that is exempt from taxation under Section
501(c)(3) (or any successor provision thereto) upon a conversion of, or transfer of all or substantially all of the assets of, a Charitable
Trust to such successor entity (whether a determination letter with respect to such successor’s exemption is issued before, at
or after the conversion date)
(C)
“Class B Holder” shall mean a record or beneficial owner of Class B Common Stock together with Affiliates of such
Class B Holder and Permitted Transferees of such Class B Holder.
(D)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, or any successor statute.
(E)
“Family Member” shall mean, with respect to any Class B Holder who is a natural
person, the spouse, former spouses, domestic partners, parents, grandparents, parents-in-law, former parents-in-law, lineal descendants,
siblings and lineal descendants of siblings (in each case whether by blood relation or adoption) of such Class B Holder.
(F)
a “Permitted Transferee” of a Class B Holder shall include (i) such Class B Holder’s Family Members or one or
more bona fide trusts for the benefit of such Family Members, (ii) any Affiliate of such
Class B Holder so long as such Affiliate remains an Affiliate, and (iii) any Charitable Trust created or established by such Class B
Holder over which such Class B Holder exercises voting control. For purposes of this definition, “voting control,” as used
with respect to any Charitable Trust, means (i) the power to exercise any voting rights of beneficial owners of such Charitable Trust
and (ii) the ability to direct the voting of any securities of the Corporation held by such Charitable Trust.
(G)
“Person” shall mean any natural person, corporation, partnership, limited liability company, firm, association, trust,
government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.
(H)
“Qualifying Self-Tender Offer” shall mean a “tender offer” under Rule 13e-4 and Section 14(d) of the Exchange
Act to purchase all shares of Class B Common Stock not owned by the transferring Class B Holder provided that (i) all other Class B Holders
are entitled to participate in such tender offer on a pro rata basis, and (ii) each such Class B Holder tendering shares of Class B Common
Stock in such tender offer shall be entitled to receive an amount per share in cash equal to the fair market value of the non-cash consideration
to be received by the transferring Class B Holder as determined in good faith by the Board of Directors. In the event that the Board
of Directors determines in good faith that the fair market value of such non-cash consideration is less than the fair market value of
the Class B Common Stock, then such tender offer shall be at the fair market value of the Class B Common Stock as determined in good
faith by the Board of Directors.
(I)
“Qualifying Tender Offer” shall mean a “tender offer” under Section 14(d) of the Exchange Act to purchase
shares of Class B Common Stock provided that (i) all Class B Holders (including the transferring Class B Holder) are entitled to participate
in such tender offer on a pro rata basis, and (ii) each such Class B Holder tendering shares of Class B Common Stock in such tender offer
shall (x) be entitled to receive the same consideration per share, and (y) shall be subject to the same terms and conditions in such
tender offer.
(J)
“Transfer” shall mean any conveyance, issuance, sale, transfer, gift, assignment, devise or other disposition, by
any means, of legal, record or beneficial ownership (direct or indirect) of shares of Class B Common Stock, whether such means are direct
or indirect, voluntary or involuntary, by operation of law or otherwise, or any agreement to take any such action or cause any such events,
including, without limitation, the transfer of any ownership interest in any entity that owns (directly or indirectly) Class B Common
Stock, or the transfer of, or entering into a binding agreement with respect to, Voting Control over such shares of Class B Common Stock
by proxy or otherwise shall be considered a “Transfer” of such shares; provided, however, that the following shall not be
considered a “Transfer” within the meaning of this Section 4.02(j):
(1)
a pledge of or granting of a security interest with respect to shares of Class B Common Stock (but not the voting rights attended thereto)
unless and until the record or beneficial ownership of such shares is actually transferred pursuant thereto;
(2)
the granting of a revocable proxy to officers or directors of the Corporation at the request of the Board of Directors in connection
with actions to be taken at an annual or special meeting of stockholders; or
(3)
entering into a support, voting, tender or similar agreement or arrangement (in each case, with or without the grant of a proxy) in connection
with a liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary), a merger or consolidation of the
Corporation with or into any other entity or any other transaction having an effect on stockholders substantially similar to that resulting
from a merger or consolidation, a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the
Corporation, or a transaction or series of related transactions to which the Corporation is a party in which shares of the Corporation
are transferred such that in excess of fifty percent (50%) of the Corporation’s voting power is transferred, or in connection with
consummating the actions or transactions contemplated thereby (including, without limitation, tendering or voting shares of Class B Common
Stock in connection with such a transaction, the consummation of such a transaction or the sale, assignment, transfer, conveyance, hypothecation
or other transfer or disposition of shares of Class B Common Stock or any legal or beneficial interest in shares of Class B Common Stock
in connection with such a transaction); provided that any sale, tender, assignment, transfer, conveyance, hypothecation or other transfer
or disposition of Class B Common Stock or any legal or economic interest therein pursuant to such a transaction, or any grant of a proxy
over Class B Common Stock with respect to such a transaction without specific instructions as to how to vote such Class B Common Stock,
in each case, will constitute a “Transfer” of such Class B Common Stock unless such transaction was approved by the Board
of Directors prior to the taking of such action.
(K)
“Qualifying Transferee” shall mean any Person to which a Class B Holder Transfers shares of Class B Common Stock in
excess of 25% of the total outstanding shares of Class B Common Stock in one transaction or a series of related transactions in accordance
with and pursuant to this Section 4.02(j).
(L)
“Transferee Tender Offer” shall mean, with respect to any Transfer to a Qualifying Transferee for solely non-cash
consideration, either (i) an offer by such Qualifying Transferee to purchase all shares of Class B Common Stock not owned by the transferring
Class B Holder for the same non-cash consideration per share or (ii) an offer by such Qualifying Transferee to purchase all shares of
Class B Common Stock not owned by the transferring Class B Holder at an amount per share in cash equal to the value of the non-cash consideration
to be received by the transferring Class B Holder as determined in good faith by the Board of Directors.
(M)
“Voting Control” shall mean, with respect to shares of Class B Common Stock, the power (whether exclusive or shared)
to vote or direct the voting of such shares by proxy, voting agreement or otherwise.
(k)
Repurchase Offer upon Exclusion of Class B Common Stock from Liquid Trading Market. If, as a result of any statute, law, regulation,
court order, legal process or rule or rule interpretation of a national securities exchange, the Class B Common Stock is excluded from
listing on the Nasdaq Stock Market, another national securities exchange or other liquid trading market (other than temporary events
as determined by the Board of Directors in good faith) (the date of such event, as determined by the Board of Directors in good faith,
the “Determination Date”), the Corporation shall promptly commence a voluntary offer to repurchase for cash shares of Class
B Common Stock at the Applicable VWAP. For purposes of this Section 4.02(k), “Applicable VWAP” shall mean the average of
the volume weighted average price of shares of Class A Common Stock for each of the ten (10) immediately preceding consecutive trading
days prior to the Determination Date, as displayed on Bloomberg in respect of the period from the scheduled open of trading until the
scheduled close of trading of the primary trading session on such trading day, determined without regard to after-hours trading or any
other trading outside of the regular trading session hours. Notwithstanding the foregoing, if shares of Class A Common Stock are not
currently listed on the Nasdaq Stock Market, another national securities exchange or other liquid trading market such that the Applicable
VWAP cannot be readily determined, such repurchase of shares of Class B Common Stock shall be at the fair market value as determined
by the Board of Directors in good faith.
SECTION
4.03 Preferred Stock. The Preferred Stock may be issued at any time and from time to time in one or more series. Subject to
the provisions of this Certificate of Incorporation and applicable law, the Board of Directors is authorized to fix from time to time
by resolution or resolutions the number of shares constituting any such series of Preferred Stock and the designation thereof, and to
determine (and set forth in a certificate of designation filed pursuant to the DGCL) the powers, designations, preferences and relative,
participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, if any, of any
wholly unissued series of Preferred Stock, including, without limitation, dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including, without limitation, sinking fund provisions), redemption price or prices and liquidation preferences
of any such series, or any of the foregoing. Further, the Board of Directors is authorized to increase (but not above the total number
of authorized shares of the class) or decrease (but not below the number of shares of such series then outstanding) the number of shares
of any such series subsequent to the issuance of shares of that series, subject to the powers, preferences and rights, and the qualifications,
limitations and restrictions thereof, stated in this Certificate of Incorporation or the resolution of the Board of Directors originally
fixing the number of shares of such series. If the number of shares of any series of Preferred Stock is so decreased, then the shares
constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number
of shares of such series. The voting powers, designations, preferences and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions of the (a) Series A Fixed Rate Cumulative Preferred Stock are set forth in Annex
A hereto and (b) Series B Cumulative Preferred Stock are set forth in Annex B hereto, and each of them are incorporated herein
by reference.
ARTICLE
V
BOARD
OF DIRECTORS
SECTION
5.01 Number. The number of directors that shall constitute the entire Board of Directors shall be determined in the manner
prescribed by the Bylaws of the Corporation (the “Bylaws”).
SECTION
5.02 Classification; Term. Subject to the rights of holders of any series of Preferred Stock with respect to the election
of directors, the directors of the Corporation shall be divided into three classes as nearly equal in number as is practicable, hereby
designated Class I, Class II and Class III. The term of office of the initial Class I directors shall expire upon the election of directors
at the annual meeting of stockholders to be held in 2021; the term of office of the initial Class II directors shall expire upon the
election of directors at the annual meeting of stockholders to be held in 2022; and the term of office of the initial Class III directors
shall expire upon the election of directors at the annual meeting of stockholders to be held in 2023. At each annual meeting of stockholders,
each of the successors elected to replace the directors of a class whose term shall have expired at such annual meeting shall be elected
to hold office until the third annual meeting next succeeding his or her election and until his or her respective successor shall have
been duly elected and qualified. Subject to the rights of holders of any outstanding series of Preferred Stock with respect to the election
of directors, if the number of directors that constitutes the Board of Directors is changed, any newly created directorships or decrease
in directorships shall be so apportioned by the Board of Directors among the classes as to make all classes as nearly equal in number
as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of
any incumbent director. Notwithstanding the foregoing provisions of this Section 5.02, and subject to the rights of holders of any series
of Preferred Stock with respect to the election of directors, each director shall serve until such director’s successor is duly
elected and qualified or until such director’s earlier death, resignation or removal.
SECTION
5.03 Rights of Holders of Preferred Stock Relating to Director Elections. Notwithstanding any of the other provisions of this
Article V, whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately
by series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of the certificate of designation for such series of Preferred Stock,
and such directors so elected shall not be divided into classes pursuant to this Article V unless expressly provided by such terms. During
any period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant
to the provisions of this Article V, then upon commencement and for the duration of the period during which such right continues; (a)
the then otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number
of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant
to such provisions, and (b) each such additional director shall serve until such director’s successor shall have been duly elected
and qualified, or until such director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier,
subject to such director’s earlier death, resignation or removal. Except as otherwise provided by the Board of Directors in the
resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect
additional directors are divested of such right pursuant to the provisions of such series of stock, the terms of office of all such additional
directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation or removal of
such additional directors, shall forthwith terminate, and the total authorized number of directors of the Corporation shall be reduced
accordingly.
SECTION
5.04 Removal. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors,
a director may be removed from office by the stockholders of the Corporation only for cause.
SECTION
5.05 Vacancies and Newly Created Directorships. Subject to the rights and preferences of holders of any series of outstanding
Preferred Stock with respect to the election of directors, vacancies occurring on the Board of Directors for any reason and newly created
directorships resulting from an increase in the number of directors shall, unless otherwise provided by law, be filled solely by the
affirmative vote of a majority of the remaining directors then in office, although less than a quorum, or by a sole remaining director,
and shall not be filled by any other person or persons, including stockholders. Any director so elected shall hold office for the remainder
of the full term of the class for which such director shall have been assigned by the Board of Directors or in which such vacancy occurred
and until such persons’ successor shall be duly elected and qualified. No decrease in the authorized number of directors shall
shorten the term of any incumbent director.
SECTION
5.06 Powers. Except as otherwise expressly provided by the DGCL or this Certificate of Incorporation, the business and affairs
of the Corporation shall be managed by or under the direction of the Board of Directors.
SECTION
5.07 Election. The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
ARTICLE
VI
STOCKHOLDERS
SECTION
6.01 Special Meetings. Except as otherwise expressly provided by the terms of any series of Preferred Stock permitting the
holders of such series of Preferred Stock to call a special meeting of the holders of such series, special meetings of the stockholders
of the Corporation may be called only by the Chairman of the Board of Directors, the Chief Executive Officer of the Corporation or the
Board of Directors. The ability of the stockholders to call a special meeting of the stockholders is hereby specifically denied.
SECTION
6.02 Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought
by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner and to the extent provided in
the Bylaws.
ARTICLE
VII
FORUM
FOR CERTAIN ACTIONS
Unless
a majority of the Board, acting on behalf of the Corporation, consents in writing to the selection of an alternative forum (which consent
may be given at any time, including during the pendency of litigation), the Court of Chancery of the State of Delaware (or, if the Court
of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no court located within the State
of Delaware has jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (a)
any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty
owed by any current or former director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders,
(c) any action asserting a claim against the Corporation or any of its current or former directors, officers or other employees arising
pursuant to any provision of the DGCL, this Certificate of Incorporation or the Bylaws (in each case, as may be amended from time to
time) or (d) any action asserting a claim against the Corporation or any of its current or former directors, officers or other employees
governed by the internal affairs doctrine of the State of Delaware, in all cases subject to the court’s having personal jurisdiction
over all indispensable parties named as defendants.
ARTICLE
VIII
LIMITATION
OF LIABILITY AND INDEMNIFICATION
SECTION
8.01 Limitation of Personal Liability. No director of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL, as it presently exists or may hereafter be amended from time to time. If the DGCL is amended
to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. No amendment to or repeal
of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such amendment or repeal.
SECTION
8.02 Indemnification. The Corporation shall indemnify, to the fullest extent authorized or permitted by the DGCL, as now or
hereafter in effect, any director or officer of the Corporation who was or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise, by
reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, trustee or employee of another corporation, partnership, joint venture, trust or other enterprise, and
such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure
to the benefit of such person’s heirs, executors and personal and legal representatives. The right to indemnification conferred
by this Section 8.02 shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating
in any proceeding in advance of its final disposition, provided that such director or officer presents to the Corporation a written undertaking
to repay such amount if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation
under this Article VIII or otherwise. Notwithstanding the foregoing, except for proceedings to enforce any director’s or officer’s
rights to indemnification or to advancement of expenses, the Corporation shall not be obligated to indemnify or advance expenses to any
director or officer (or such director’s or officer’s heirs, executors or personal or legal representatives) in connection
with any proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of
Directors.
SECTION
8.03 Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the Corporation would
have the power to indemnify such person against such liability under the DGCL.
SECTION
8.04 Non-Exclusivity of Rights. The rights and authority conferred in this Article VIII shall neither be exclusive of, nor
be deemed in limitation of, any rights to which any person may otherwise be or become entitled or permitted under this Certificate of
Incorporation, the Bylaws, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION
8.05 Persons Other Than Directors and Officers. This Article VIII shall not limit the right of the Corporation, to the extent
and in the manner permitted by law, to indemnify and to advance expenses to, or to purchase and maintain insurance on behalf of, persons
other than those persons described in the first sentence of Section 8.02 of Article VIII or to advance expenses to persons other than
directors and officers of the Corporation.
SECTION
8.06 Effect of Modifications. Any amendment, repeal or modification of any provision contained in this Article VIII shall,
unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to
further limit or eliminate the liability of directors or officers) and shall not adversely affect any right or protection of any current
or former director or officer of the Corporation existing at the time of such amendment, repeal or modification with respect to any acts
or omissions occurring prior to such amendment, repeal or modification.
ARTICLE
IX
OWNERSHIP
LIMIT
SECTION
9.01 Definitions. For purposes of this Article IX only:
(a)
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor statute;
(b)
“Committee” shall mean a committee established from time-to-time by the Board of Directors to administer this Article
IX, comprised of at least three directors on the Board of Directors, none of whom shall be “affiliated” (as that term is
defined in Rule 12b-2 of the Exchange Act) with Fog Cutter Holdings, LLC;
(c)
“Excess Shares” means any Stock, or any rights in Stock, the Transfer or ownership of which would result in, or increase,
a Prohibited Ownership Percentage under Section 9.02;
(d)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, or any successor statute;
(e)
“Expiration Date” means the earlier of (x) the repeal of Section 382 of the Code, if the Committee determines that
the restrictions in this Article IX are no longer necessary or desirable for the preservation of the Tax Benefits, or (y) such date as
the Committee shall fix in accordance with Section 9.07 of this Article IX;
(f)
“Option” shall have the meaning set forth in Treasury Regulation Sections 1.382-4(d)(9) and 1.382-2T(h)(4)(v);
(g)
a “Person” shall mean any individual, corporation, estate, trust (including a trust qualified under Sections 401(a)
or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section
642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, company, limited liability company,
partnership, joint venture, or similar organization (including the Corporation if appropriate in the context) and also includes a group
as that term is used for purposes of Section 13(d)(3) of the Exchange Act, or any other entity described in Treasury Regulation Section
1.382-3(a)(1)(i);
(h)
“Prohibited Distributions” means any and all dividends or other distributions paid by the Corporation with respect
to any Excess Shares received by a Purported Acquiror;
(i)
a “Public Group” shall have the meaning contained in Treasury Regulation Section 1.382-2T(f)(13);
(j)
a “Prohibited Ownership Percentage” shall mean (i) any beneficial ownership (as defined under Section 13(d) of the
Exchange Act) of five percent (5%) or more in value of the aggregate outstanding Stock, (ii) any beneficial ownership (determined under
federal income tax principles, including indirect and constructive ownership for purposes of Section 382 of the Code, including Treasury
Regulation Sections 1.382-4 and 1.382-2T(h), of five percent (5%) or more in value of the aggregate outstanding Stock, or (iii) a “5-percent
shareholder” of the Corporation within the meaning of Treasury Regulation Section 1.382-2T(g) (determined (A) without giving effect
to Treasury Regulation Sections 1.382-2T(g)(2), 1.382-2T(g)(3), 1.382-2T(h)(2)(ii) or (iii), and 1.382-2T(h)(6)(iii), (B) by treating
every Person or Public Group which owns Stock, whether directly or by attribution, as directly owning such Stock notwithstanding any
further attribution of such Stock to other Persons and notwithstanding Treasury Regulation Section 1.382-2T(h)(2)(i)(A), (C) by substituting
the term “Person” or “Public Group” in place of “individual” in Treasury Regulation Section 1.382-2T(g)(1),
and (D) by treating an Option as Stock only to the extent that treating it as Stock would cause an increase in ownership of Stock by
the Transferee, Person or Public Group under Section 9.02);
(k)
“Prohibited Person” shall mean any Person or Public Group who has or would have, if a Transfer or purported Transfer
were completed, a Prohibited Ownership Percentage;
(l)
“Purported Acquiror” shall mean any Person or Public Group that purports to acquire record, beneficial, legal or any
other ownership of Excess Shares. If there is more than one Purported Acquiror with respect to certain Excess Shares (for example, if
the Purported Acquiror of record ownership of such Excess Shares is not the Purported Acquiror of beneficial ownership of such Excess
Shares), then references to “Purported Acquiror” shall include any or all of such Purported Acquirors, as appropriate;
(m)
“Stock” means all interests in the Corporation that would be treated as stock in the Corporation pursuant to Treasury
Regulation Section 1.382(d)(3) or 1.382-2T(f)(18);
(n)
“Tax Benefits” shall mean net operating loss carryovers (including, without limitation, any “net unrealized
built-in loss,” as defined under Code Section 382), capital loss carryovers, general business credit carryovers, alternative minimum
tax credit carryovers and other tax benefits to which the Corporation or any member of the Corporation’s “affiliated group,”
as that term is used in Section 1504 of the Code (or any similar provision of state or local law), is or becomes entitled pursuant to
the Code and the Treasury Regulations (or any similar provision of state or local law).
(o)
“Transfer” shall mean any conveyance, issuance, sale, transfer, gift, assignment, devise or other disposition, by
any means, of legal, record or beneficial ownership (direct or indirect) of Stock, whether such means are direct or indirect, voluntary
or involuntary, by operation of law or otherwise, or any agreement to take any such action or cause any such events, including, without
limitation, the transfer of any ownership interest in any entity that owns (directly or indirectly) Stock (and any reference in this
Article IX to a Transfer of Stock shall include any Transfer of any interest in any such entity and references to the Persons to whom
Stock is Transferred shall include Persons to whom any interest in any such entity shall have been Transferred); and
(p)
“Transferee” means any Person to whom Stock is Transferred.
(q)
“Treasury Regulations” shall mean the regulations promulgated under the Code, including temporary regulations, as
amended from time to time. In any reference in this Article IX to Section 382 of the Code or any Treasury Regulation thereunder, the
“loss corporation” shall be the Corporation, without regard to whether or not it has any loss or other attribute.
SECTION
9.02 Transfer and Ownership Restrictions. In order to preserve the Tax Benefits of the Corporation, from and after the effective
time of this Article IX until the Expiration Date, no Transfer of any Stock may be made to a Transferee, other than to Fog Cutter Holdings,
LLC, a Delaware limited liability company, to the extent that such Transfer, if effected: (a) would cause the Transferee or any other
Person or Public Group to have a Prohibited Ownership Percentage; or (b) would increase the Prohibited Ownership Percentage of the Transferee
or any other Person or Public Group having a Prohibited Ownership Percentage.
SECTION
9.03 Waiver of Restrictions. Notwithstanding anything herein to the contrary, the Committee may waive the application of any
of the restrictions contained in Section 9.02, including, without limitation, any Transfer of Stock that would otherwise be prohibited,
in any instance in which the Committee determines that a waiver would be in the best interests of the Corporation, notwithstanding the
effect of such waiver on any Tax Benefits. The Committee may impose any conditions that it deems reasonable and appropriate in connection
with such a waiver, including without limitation, restrictions on the ability of any Transferee to Transfer Stock acquired through a
Transfer. A waiver of the Committee hereunder may be given prospectively or retroactively.
SECTION
9.04 Purported Transfer in Violation of Transfer Restriction. Unless a waiver of the Committee is obtained as provided in
Section 9.03, any purported Transfer of Excess Shares (other than a Transfer as provided in Section 9.04(b) or an automatic transfer
as provided below) shall be null and void ab initio and shall not be effective to Transfer any record, legal, beneficial or any
other ownership of such Excess Shares to the Purported Acquiror, who shall not be entitled to any rights as a stockholder of the Corporation
with respect to such Excess Shares, and such Excess Shares shall be automatically transferred pursuant to DGCL Section 202(c)(4) to an
agent designated by the Corporation (the “Agent”). Any future dividends or distributions payable on any Excess Shares
shall be paid to the Agent until the Excess Shares are sold by it. A Transfer that is null and void under this Section 9.04 shall not
adversely affect the validity of any other Transfer of any Stock in the same or any other related transaction.
(a)
Demand by Corporation. Unless a waiver of the Committee is obtained as provided in Section 9.03 of this Article IX, within 30
days of a determination by the Committee that there has been or is threatened a purported Transfer of Excess Shares to a Purported Acquiror,
or that a Person proposes to take any action in violation of this Article IX (whether or not such action is intentional), the Corporation
shall make a demand on the Purported Acquiror to transfer or cause the transfer of any certificate or other evidence of purported ownership
of the Excess Shares within the Purported Acquiror’s possession or control, along with the Prohibited Distributions, to the Agent.
Any failure by the Purported Acquiror to transfer or cause the transfer of any certificate or other evidence of purported ownership of
the Excess Shares to the Agent shall not negate the automatic transfer of such Excess Shares to the Agent.
(b)
Transfer of Excess Shares and Prohibited Distributions to Agent. Upon demand by the Corporation, the Purported Acquiror shall
transfer or cause the transfer of any certificate or other evidence of purported ownership of the Excess Shares within the Purported
Acquiror’s possession or control, along with the Prohibited Distributions, to the Agent. The Agent shall sell in an arms-length
transaction (through The Nasdaq Stock Market, if possible, but in any event consistent with applicable law) any Excess Shares provided,
however, that the Agent shall, in its reasonable discretion, effect such sale or sales in an orderly fashion and shall not be required
to effect any such sale within any specific time frame if, in the Agent’s reasonable discretion, such sale or sales would disrupt
the market for the Common Stock or other securities of the Corporation or would otherwise substantially adversely affect the value of
the Common Stock or such other securities. The proceeds of such sale shall be referred to as “Sales Proceeds.” If,
after purportedly acquiring the Excess Shares, the Purported Acquiror has purported to sell some or all of them to an unrelated party
in an arms-length transaction, the Purported Acquiror shall be deemed to have sold such Excess Shares on behalf of the Agent, and in
lieu of transferring the Prohibited Distributions to the Agent, the Purported Acquiror shall transfer to the Agent the Prohibited Distributions
and the proceeds of such sale (the “Resale Proceeds”), except to the extent that the Agent grants written permission
to the Purported Acquiror to retain a portion of the Resale Proceeds not exceeding the amount that would have been payable by the Agent
to the Purported Acquiror pursuant to Section 9.04(c) if the Excess Shares had been sold by the Agent rather than by the Purported Acquiror.
Any purported Transfer of the Excess Shares by the Purported Acquiror other than a transfer which (a) is described in the preceding sentences
of this Section 9.04(b) or occurs automatically to the Agent and (b) does not itself violate the provisions of this Article IX shall
be null and void ab initio and shall not be effective to transfer any ownership of the Excess Shares.
(c)
Allocation of Sale Proceeds, Resale Proceeds and Prohibited Distributions. The Sales Proceeds, the Resale Proceeds if applicable,
and Prohibited Distributions if applicable shall be allocated as follows: (1) first to the Agent in an amount equal to the expenses incurred
in selling such Excess Shares; then (2) second, to the Purported Acquiror up to the following amount: (a) the purported purchase price
paid or value of consideration surrendered by the Purported Acquiror for the Excess Shares, or (b) where the purported Transfer of the
Excess Shares to the Purported Acquiror was by gift, inheritance, or any similar purported Transfer, the fair market value of the Excess
Shares at the time of such purported Transfer; and then (3) third any remaining amounts to an entity designated by the Corporation that
is described in Section 501(c)(3) of the Code, contributions to which must be eligible for deduction under each of Sections 170(b)(1)(A),
2055 and 2522 of the Code. In no event shall any Excess Shares, Sales Proceeds, Resale Proceeds or Prohibited Distributions inure to
the benefit of the Corporation or the Agent, except to the extent used to cover expenses incurred by the Agent in performing its duties
hereunder.
(d)
Remedies. Without limiting any other remedies available to the Corporation, if a Purported Acquiror shall fail to comply with
Section 9.04(b) within thirty (30) days of the Corporation’s demand, and unless a waiver of the Committee is obtained as provided
in Section 9.03, the Corporation shall promptly take all cost effective actions which it believes appropriate to compel the Purported
Acquiror to surrender to the Agent the certificates representing any purported ownership of Excess Shares, the Resale Proceeds, and/or
the Prohibited Distributions or to enjoin or rescind any such purported Transfer. The Committee may authorize such additional actions
as it deems advisable to give effect to the provisions of this Article IX, including, without limitation, refusing to give effect on
the books of the Corporation to any such purported Transfer. The Corporation is authorized specifically to seek equitable relief, including
injunctive relief, to enforce or prevent a violation of the provisions of this Article IX.
(e)
Liability. If any Person shall knowingly violate, or knowingly cause any other Person under the control of such Person (“Controlled
Person”) to violate, Section 9.02, then that Person and any Controlled Person shall be jointly and severally liable for, and
shall pay to the Corporation, such amount as will, after taking account of all taxes imposed with respect to the receipt or accrual of
such amount and all costs incurred by the Corporation as a result of such violation, put the Corporation in the same financial position
as it would have been in had such violation not occurred.
SECTION
9.05 Obligation to Provide Information. At the request of the Corporation or as a condition to the registration of the Transfer
of any Stock, any Person who is a beneficial, legal or record holder of Stock, and any proposed Transferee and any Person controlling,
controlled by or under common control with the proposed Transferee, shall provide such information as the Corporation may request from
time to time in order to determine compliance with this Article IX or the status of the Corporation’s Tax Benefits.
SECTION
9.06 Legends. The Committee may require that any certificates issued by the Corporation evidencing ownership of shares of
Stock that are subject either to the restrictions on transfer and ownership contained in this Article IX or to conditions imposed by
the Committee under Section 9.03 bear a conspicuous legend referencing the applicable restrictions.
SECTION
9.07 Authority of Committee. Nothing contained in this Article IX shall limit the authority of the Committee to take such
other action to the extent permitted by law as it deems necessary or advisable to preserve the Tax Benefits. Without limiting the generality
of the foregoing, in the event of a change in law (including applicable regulations) making one or more of the following actions necessary
or desirable or in the event that the Committee believes one or more of such actions is in the best interest of the Corporation, the
Committee may accelerate or extend the Expiration Date; provided that the Committee shall determine in writing that such acceleration
or extension is reasonably necessary or desirable to preserve the Tax Benefits or that the continuation of these restrictions is no longer
reasonably necessary or desirable to preserve the Tax Benefits, as the case may be. In addition, the Committee may, to the extent permitted
by law, from time to time establish, modify, amend or rescind Bylaws, regulations and procedures of the Corporation not inconsistent
with the express provisions of this Article IX for purposes of determining whether any Transfer of Stock would jeopardize the Corporation’s
ability to preserve or utilize any Tax Benefits, or for the orderly application, administration and implementation of the provisions
of this Article IX. The Committee shall have the exclusive power and authority to administer this Article IX and to exercise all rights
and powers specifically granted to the Committee, or as may be necessary or advisable in the administration of this Article IX, including
without limitation, the right and power to (1) interpret the provisions of this Article IX, (2) make all calculations and determinations
deemed necessary or advisable for the administration of this Article IX and (3) determine value in good faith, which determination shall
be conclusive. In the case of an ambiguity in the application of any of the provisions of this Article IX, including any definition used
herein, the Committee shall have the power to determine the application of such provisions with respect to any situation based on its
reasonable belief, understanding or knowledge of the circumstances. In the event this Article IX requires an action by the Committee
but fails to provide specific guidance with respect to such action, the Committee shall have the power to determine the action to be
taken so long as such action is not contrary to the provisions of this Article IX. All such actions, calculations, interpretations and
determinations which are done or made by the Committee in good faith shall be final, conclusive and binding on the Corporation, the Agent,
and all other parties.
SECTION
9.08 Benefits of this Article IX. Nothing in this Article IX shall be construed to give to any Person other than the Corporation
or the Agent any legal or equitable right, remedy or claim under this Article IX. This Article IX shall be for the sole and exclusive
benefit of the Corporation and the Agent.
SECTION
9.09 Severability. If any provision of this Article IX or the application of any such provision to any Person or under any
circumstance shall be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision of this Article IX.
SECTION
9.10 Waiver. With regard to any power, remedy or right provided herein or otherwise available to the Corporation or the Agent
under this Article IX, (i) no waiver will be effective unless expressly contained in a writing signed by the waiving party; and (ii)
no alteration, modification or impairment will be implied by reason of any previous waiver, extension of time, delay or omission in exercise,
or other indulgence.
ARTICLE
X
AMENDMENT
SECTION
10.01 Amendment of Certificate of Incorporation. The Corporation reserves the right to amend, alter or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by this Certificate of Incorporation and the
DGCL, and all rights, preferences and privileges herein conferred upon stockholders of the Corporation by and pursuant to this Certificate
of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Section 10.01. In addition
to any other vote that may be required by law, this Certificate of Incorporation, applicable stock exchange rule or the terms of any
series of Preferred Stock, the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares
of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall
be required to amend, alter, repeal or adopt any provision of this Certificate of Incorporation. Notwithstanding any other provision
of this Certificate of Incorporation, and in addition to any other vote that may be required by law, applicable stock exchange rule or
the terms of any series of Preferred Stock, the affirmative vote of the holders of at least 75% of the voting power of all then outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class,
shall be required to amend, alter, repeal or adopt any provision of this Certificate of Incorporation inconsistent with the purpose and
intent of Article V, Article VI, Article VII, Article VIII, Article IX or this Article X (including, without limitation, any such Article
as renumbered as a result of any amendment, alteration, repeal or adoption of any other Article).
SECTION
10.02 Amendment of Bylaws. In furtherance and not in limitation of the powers conferred by the DGCL, the Board of Directors
is expressly authorized to adopt, amend, alter or repeal the Bylaws. The Bylaws may also be adopted, amended, altered or repealed by
the stockholders of the Corporation by the affirmative vote of the holders of at least 75% of the voting power of all then outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
ARTICLE
XI
SECTION
203
The
Corporation expressly elects not to be governed by Section 203 of the DGCL, and the restrictions contained in Section 203 of the DGCL
shall not apply to the Corporation.
*
* * * *
ANNEX
A
CERTIFICATE
OF DESIGNATION OF RIGHTS AND PREFERENCES
SERIES
A FIXED RATE CUMULATIVE PREFERRED STOCK
Section
1. Number of Shares and Designation. This series of Preferred Stock shall be designated as Series A Fixed Rate Cumulative Preferred
Stock, par value $0.0001 per share (the “Series A Preferred Stock”), and the number of shares that shall constitute
such series shall be 100,000.
Section
2. Definitions. For purposes of the Series A Preferred Stock and as used in this Certificate, the following terms shall have
the meanings indicated:
“Business
Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions
in New York, New York are not required to be open.
“Call
Date” shall mean the date fixed for redemption of the Series A Preferred Stock and specified in the notice to holders
required under paragraph (f) of Section 5 hereof as the Call Date.
“Certificate”
shall mean this Certificate of Designation of Rights and Preferences of the Series A Preferred Stock.
“Change
of Control” shall mean when, after the original issuance of the Series A Preferred Stock, any of the following has
occurred and is continuing: (i) any sale, lease, or transfer, exclusive license or other dispositions (or series of sales, leases, transfers,
exclusive licenses or other dispositions) of all or substantially all of the assets of the Corporation and its subsidiaries; (ii) any
sale, transfer or issuance (or series of sales, transfers or issuances) of capital stock by the Corporation or the holders of Common
Shares (or other Voting Stock of the Corporation) that results in the inability of the holders of Common Shares (or other Voting Stock
of the Corporation) immediately prior to such sale, transfer or issuance to designate or elect a majority of the board of directors (or
its equivalent) of the Corporation; or (iii) any merger, consolidation, recapitalization or reorganization of the Corporation with or
into another Person (whether or not the Corporation is the surviving corporation) that results in the inability of the beneficial holders
of Common Shares (or other Voting Stock of the Corporation) immediately prior to such merger, consolidation, recapitalization or reorganization
to designate or elect a majority of the board of directors (or its equivalent) of the resulting entity or its parent company.
“Common
Shares” shall mean the shares of common stock, $0.0001 par value, of the Corporation.
“Dividend
Default” shall have the meaning set forth in subparagraph (b)(i) of Section 3 hereof.
“Dividend
Payment Date” shall have the meaning set forth in subparagraph (a)(i) of Section 3 hereof.
“Dividend
Periods” shall mean quarterly dividend periods commencing on the first day of each of January, April, July and October
and ending on and including the day preceding the first day of the next succeeding Dividend Period; provided, however, that any Dividend
Period during which any Series A Preferred Stock shall be redeemed pursuant to Section 5 hereof shall end on but shall not include the
Call Date only with respect to the Series A Preferred Stock being redeemed.
“Dividend
Rate” shall mean 9.9% per annum.
“Dividend
Record Date” shall have the meaning set forth in subparagraph (a)(i) of Section 3 hereof.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended.
“FAT
Board” shall mean the board of directors of the Corporation or any committee of members of the board of directors
authorized by such board to perform any of its responsibilities with respect to the Series A Preferred Stock.
“Issue
Date” shall mean the original date of issuance of Series A Preferred Stock, or June 8, 2018.
“Junior
Shares” shall have the meaning set forth in paragraph (a)(iii) of Section 7 hereof.
“Mandatory
Redemption Date” shall have the meaning
set forth in paragraph (c) of Section 5 hereof.
“Parity
Shares” shall have the meaning set forth in paragraph (b) of Section 7 hereof.
“Penalty
Rate” shall mean the Dividend Rate then in effect plus 1.0% per annum.
“Person”
shall mean any individual, firm, partnership, limited liability company, corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
A
“Quarterly Dividend Default” shall occur if the Corporation fails to pay dividends on the Series A Preferred
Stock provided for in Section 3(a)(i) in full for any Dividend Period.
“SEC”
shall have the meaning set forth in Section 9 hereof.
“Securities
Act” shall mean the U.S. Securities Act of 1933, as amended.
“Senior
Shares” shall have the meaning set forth in paragraph (a) of Section 7 hereof.
“Series
A Preferred Stock” shall have the meaning set forth in Section 1 hereof.
“set
apart for payment” shall be deemed to include, without any further action, the following: the recording by the Corporation
in its accounting ledgers of any accounting or bookkeeping entry that indicates, pursuant to an authorization by the FAT Board and a
declaration of dividends or other distribution by the Corporation, the initial and continued allocation of funds to be so paid on any
series or class of shares of stock of the Corporation; provided, however, that if any funds for any class or series of Junior Shares
or any class or series of Parity Shares are placed in a separate account of the Corporation or delivered to a disbursing, paying or other
similar agent, then “set apart for payment” with respect to the Series A Preferred Stock shall mean irrevocably placing such
funds in a separate account or irrevocably delivering such funds to a disbursing, paying or other similar agent.
“Transfer
Agent” means VStock Transfer, LLC, or such other agent or agents of the Corporation as may be designated by the
FAT Board or its duly authorized designee as the transfer agent, registrar and dividend disbursing agent for the Series A Preferred Stock.
“Voting
Stock” shall mean stock of any class or kind having the power to vote generally for the election of directors.
Section
3. Dividends.
(a)(i)
Holders of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the FAT Board or a duly authorized committee
thereof, in its sole discretion, out of funds of the Corporation legally available for the payment of distributions, cumulative preferential
cash dividends at a rate per annum equal to the Dividend Rate multiplied by $100.00 per share stated liquidation preference of the Series
A Preferred Stock (subject to adjustment as set forth in paragraphs (b) and (c) of this Section 3). Such dividends shall accrue without
interest and accumulate, whether or not earned or declared, on each issued and outstanding share of the Series A Preferred Stock from
(and including) the original date of issuance of such share and shall be payable quarterly in arrears on the last calendar day of each
Dividend Period (each such day being hereinafter called a “Dividend Payment Date”); provided, that (i)
Series A Preferred Stock issued during any Dividend Period after the Dividend Record Date for such Dividend Period shall only begin to
accrue dividends on the first day of the next Dividend Period; and provided, further, that (ii) if any Dividend Payment
Date is not a Business Day, then the dividend that would otherwise have been payable on such Dividend Payment Date (if declared) may
be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no interest
or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business
Day. Any dividend payable on the Series A Preferred Stock for any partial Dividend Period shall be prorated and computed on the basis
of a 360-day year consisting of twelve 30-day months. Dividends shall be payable to holders of record as they appear in the stock records
of the Corporation at the close of business on the applicable record date, which shall be the fifteenth day of the month in which the
applicable Dividend Payment Date occurs, or such other date designated by the FAT Board or an officer of the Corporation duly authorized
by the FAT Board for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (each
such date, a “Dividend Record Date”).
(ii)
In addition to the dividends provided in Section 3(a)(i) above, holders of Series A Preferred Stock shall be entitled to receive additional
cumulative dividends equal to 4.0% multiplied by $100.00 per share stated liquidation preference of the Series A Preferred Stock. Such
dividends shall accrue and accumulate without interest on each issued and outstanding share of Series A Preferred Stock from (and including)
the original date of issuance of such share and shall be payable on the Mandatory Redemption Date
to holders of record in the stock records of the Corporation on the Mandatory Redemption
Date, after which time the additional dividends provided in this subparagraph (a)(ii) shall terminate.
(b)
Upon the occurrence of four accumulated, accrued and unpaid Quarterly Dividend Defaults, whether consecutive or non-consecutive (a “Dividend
Default”), then:
(i)
the Dividend Rate shall increase to the Penalty Rate, commencing on the first day after the Dividend Payment Date on which a Dividend
Default occurs and for each subsequent Dividend Payment Date thereafter until such time as the Corporation has paid all accumulated accrued
and unpaid dividends on the Series A Preferred Stock in full and has paid accrued dividends for all Dividend Periods during the two most
recently completed Quarterly Dividend Periods in full, at which time the Dividend Rate shall be reinstated; and
(ii)
when the Dividend Default is cured and the Dividend Rate is reinstated, a second Dividend Default shall not occur until the Corporation
has an additional four accumulated, accrued and unpaid Quarterly Dividend Defaults, whether consecutive or non-consecutive after the
initial default is cured.
(c)
No dividend on the Series A Preferred Stock will be declared by the Corporation or paid or set apart for payment by the Corporation at
such time as the terms and provisions of Senior Shares or any agreement of the Corporation, including any agreement relating to its indebtedness,
prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment
would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or
prohibited under the DGCL or other applicable law; provided, however, notwithstanding anything to the contrary contained herein, dividends
on the Series A Preferred Stock shall continue to accrue without interest and accumulate regardless of whether: (i) any or all of the
foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the payment of
such dividends; or (iv) such dividends are authorized by the FAT Board. Accrued and unpaid dividends on the Series A Preferred Stock
will accumulate as of the Dividend Payment Date on which they first become payable or on the date of redemption of the Series A Preferred
Stock, as the case may be.
(d)
Except as provided in the next sentence, if any Series A Preferred Stock is outstanding, no dividends will be declared or paid or set
apart for payment on any Parity Shares or Junior Shares, unless all accumulated accrued and unpaid dividends are contemporaneously declared
and paid in cash or declared and a sum of cash sufficient for the payment thereof set apart for such payment on the Series A Preferred
Stock for all past Dividend Periods with respect to which full dividends were not paid on the Series A Preferred Stock in cash. When
dividends are not paid in full (or a sum sufficient for such full payment is not so set apart for payment) upon the Series A Preferred
Stock and upon all Parity Shares, all dividends declared, paid or set apart for payment upon the Series A Preferred Stock and all such
Parity Shares shall be declared and paid pro rata or declared and set apart for payment pro rata so that the amount of dividends declared
per share of Series A Preferred Stock and per share of such Parity Shares shall in all cases bear to each other the same ratio that accumulated
dividends per share of Series A Preferred Stock and such other Parity Shares (which shall not include any accumulation in respect of
unpaid dividends for prior dividend periods if such other Parity Shares do not bear cumulative dividends) bear to each other. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series A Preferred Stock which
may be in arrears, whether at the Dividend Rate or at the Penalty Rate.
(e)
Except as provided in paragraph (d) of this Section 3, unless all accumulated accrued and unpaid dividends on the Series A Preferred
Stock are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof is set apart for
payment for all past Dividend Periods with respect to which full dividends were not paid on the Series A Preferred Stock, no dividends
(other than payable in shares of Common Stock or Junior Shares ranking junior to the Series A Preferred Stock as to dividends and upon
liquidation) may be declared or paid or set apart for payment upon the Common Stock or any Junior Shares or Parity Shares, nor shall
any Common Stock or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration
(or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation (except by conversion
into or exchange for Junior Shares or by redemption, purchase or acquisition of stock under any employee benefit plan of the Corporation).
(f)
Holders of Series A Preferred Stock shall not be entitled to any dividend in excess of all accumulated accrued and unpaid dividends on
the Series A Preferred Stock as described in this Section 3. Any dividend payment made on the Series A Preferred Stock shall first be
credited against the earliest accumulated accrued and unpaid dividend due with respect to such shares which remains payable at the time
of such payment.
Section
4. Liquidation Preference.
(a)
Subject to the rights of the holders of Senior Shares and Parity Shares, in the event of any liquidation, dissolution, winding up or
Change of Control of the Corporation, whether voluntary or involuntary, before any payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for the holders of Junior Shares as to the distribution of assets on any liquidation,
dissolution, winding up or Change of Control of the Corporation, each holder of the Series A Preferred Stock shall be entitled to receive
an amount of cash equal to $100.00 per share of Series A Preferred Stock plus an amount in cash equal to all accumulated accrued and
unpaid dividends thereon (whether or not earned or declared) to the date of final distribution to such holders. If, upon any liquidation,
dissolution, winding up or Change of Control of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among
the holders of the Series A Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments
on any other shares of any class or series of Parity Shares as to the distribution of assets on any liquidation, dissolution, winding
up or Change of Control of the Corporation, then such assets, or the proceeds thereof, shall be distributed among the holders of Series
A Preferred Stock and any such other Parity Shares ratably in accordance with the respective amounts that would be payable on such Series
A Preferred Stock and any such other Parity Shares if all amounts payable thereon were paid in full.
(b)
Written notice of any such liquidation, dissolution, winding up or Change of Control of the Corporation, stating the payment date or
dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first
class mail, postage pre-paid, not less than 20 nor more than 60 days prior to the payment date stated therein, to each record holder
of Series A Preferred Stock at the respective address of such holders as the same shall appear on the stock transfer records of the Corporation.
Subject
to the rights of the holders of Senior Shares and Parity Shares upon liquidation, dissolution, winding up or Change of Control, upon
any liquidation, dissolution, winding up or Change of Control of the Corporation, after payment shall have been made in full to the holders
of the Series A Preferred Stock, as provided in this Section 4, any other series or class or classes of Junior Shares shall, subject
to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series A Preferred Stock shall not be entitled to share therein.
Section
5. Redemption.
(a)
Optional Redemption at Election of Corporation. The Corporation may redeem the Series A Preferred Stock, in whole at any time
or from time to time in part, at the option of the Corporation, for cash, at the following redemption price per share of Series A Preferred
Stock, plus the amounts indicated in paragraph (d) of this Section 5:
(i)
On or prior to June 30, 2021: $115.00 per share.
(ii)
After June 30, 2021 and on or prior to June 30, 2022: $110.00 per share.
(iii)
After June 30, 2022: $100.00 per share.
If
fewer than all of the outstanding shares of Series A Preferred Stock are to be redeemed pursuant to the Corporation’s exercise
of its redemption right under this paragraph (a), the shares to be redeemed shall be selected pro rata (as nearly as practicable without
creating fractional shares) or by lot or in such other equitable method prescribed by the Corporation.
(b)
Optional Redemption at Election of Holder.
(i)
Holders of record of Series A Preferred Stock may elect to cause the Corporation to redeem all or any portion of their shares of Series
A Preferred Stock for cash beginning any time after the two-year anniversary of the Issue Date,
or June 8, 2020, for an amount equal to $100.00 per share plus the amounts indicated in paragraph (d) of this Section 5, which
amount may be settled in cash or Common Shares, at the option of the Holder. If the holder elects settlement in Common Shares, settlement
shall be at the volume weighted average price of the Common Shares for the twenty (20) trading days immediately preceding the date of
such holder’s notice to the Corporation electing redemption. A holder making such election shall provide written notice thereof
to the Corporation specifying the name and address of the holder, the number of shares of Series A Preferred Stock to be redeemed and
whether settlement shall be in cash or Common Shares. The Corporation shall redeem the specified shares at a time that is not more than
120 days following receipt of such notice. The Corporation may require the surrender and endorsement of the physical share certificates
representing the redeemed shares upon payment of the redemption price.
(ii)
Until the Corporation obtains approval to waive this Section 5(b)(ii) by the requisite number of its stockholders at a duly called special
or annual meeting of stockholders, the Corporation shall not deliver Common Shares in settlement of a holder’s redemption right
under Section 5(b)(i) hereof, and a holder of Series A Preferred Stock shall not have the right to elect delivery of Common Shares under
Section 5(b)(i), to the extent that (A) the aggregate Common Shares issued by the Corporation to all holders pursuant to Section 5(b)(i)
plus (B) the aggregate Common Shares issued or issuable by the Corporation pursuant to the exercise of warrants issued by the Corporation
under that certain Subscription Agreement, dated June [●], 2018, or Registration Rights Agreement, dated June [●], 2018,
would exceed 19.99% of the Common Shares issued and outstanding on the date of this Certificate, subject to pro rata adjustment in connection
with any stock splits, stock dividends, or similar changes to the Corporation’s capitalization occurring after the date of this
Certificate.
(c)
Mandatory Redemption. Unless
the Series A Preferred Stock shall have been redeemed pursuant to paragraph (a) or paragraph (b) of this Section 5, the Series A Preferred
Stock shall be subject to mandatory redemption by the Corporation for an amount equal to $100.00 per share plus the amounts indicated
in paragraph (d) of this Section 5 upon the occurrence of the first to occur of the following: (i) the date which is the five-year anniversary
of the Issue Date, or June 8, 2023 (the “Mandatory Redemption Date”),
or (ii) the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary.
(d)
Unpaid Dividends. Upon any redemption of Series A Preferred Stock pursuant to this Section 5, the Corporation shall, subject to
the next sentence, pay any accumulated accrued and unpaid dividends in arrears for any Dividend Period ending on or prior to the Call
Date. If the Call Date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, then each holder of Series
A Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided
above, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on Series A Preferred Stock
called for redemption.
(e)
Additional Limitation on Redemption. If all accumulated accrued and unpaid dividends on the Series A Preferred Stock and any other
class or series of Parity Shares of the Corporation have not been paid in cash (or, with respect to any Parity Shares, in Parity Shares),
declared and set apart for payment in cash (or, with respect to any Parity Shares, in Parity Shares), then the Corporation shall not
redeem, purchase or acquire any shares of Series A Preferred Stock or Parity Shares, otherwise than (i) pursuant to a purchase or exchange
offer made on the same terms to all holders of Series A Preferred Stock and Parity Shares, (ii) in exchange for Junior Shares, (iii)
pursuant to paragraph (b) of this Section 5; provided that the holders of not less than 75% of the outstanding shares of Series A preferred
Stock have elected to redeem such shares, or (iv) pursuant to paragraph (c) of this Section 5.
(f)
Redemption Procedures. Notice of the redemption of any Series A Preferred Stock under paragraph (a) or (c) of this Section 5 shall
be mailed by first class mail to each holder of record of Series A Preferred Stock to be redeemed at the address of each such holder
as shown on the Corporation’s records, not less than 20 nor more than 60 days prior to the Call Date. Neither the failure to mail
any notice required by this paragraph (f), nor any defect therein or in the mailing thereof, to any particular holder, shall affect the
sufficiency of the notice or the validity of the proceedings for redemption with respect to the other holders. Any notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given on the date mailed whether or not the holder receives the
notice. Each such mailed notice shall state, as appropriate: (1) the Call Date; (2) the number of shares of Series A Preferred Stock
to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price per share of Series A Preferred Stock (determined as set forth in paragraph (a) or paragraph (c)
of this Section 5, as applicable) plus accumulated accrued and unpaid dividends through the Call Date (determined as set forth in paragraph
(d) of this Section 5); (4) if any shares are represented by certificates, the place or places at which certificates for such shares
are to be surrendered; (5) that dividends on the shares to be redeemed shall cease to accrue on such Call Date except as otherwise provided
herein; and (6) any other information required by law or by the applicable rules of any exchange or national securities market upon which
the Series A Preferred Stock may be listed or admitted for trading. Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash necessary to effect such redemption), (i) except as otherwise
provided herein, dividends on the Series A Preferred Stock so called for redemption shall cease to accrue, (ii) said shares shall no
longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Series A Preferred Stock shall cease (except
the right to receive cash payable upon such redemption, without interest thereon, upon surrender and endorsement of their certificates
if so required and to receive any dividends payable thereon).
(g)
Set Asides. The Corporation’s obligation to provide cash in accordance with the preceding subsection shall be deemed fulfilled
if, on or before the Call Date, the Corporation shall irrevocably deposit funds necessary for such redemption, in trust, with a bank
or trust company that has, or is an affiliate of a bank or trust company that has, capital and surplus of at least $50 million, with
irrevocable instructions that such cash be applied to the redemption of the Series A Preferred Stock so called for redemption, in which
case the notice to holders of the Series A Preferred Stock will (i) state the date of such deposit, (ii) specify the office of such bank
or trust company as the place of payment of the redemption price and (iii) require such holders to surrender the certificates, if any,
representing such shares at such place on or about the date fixed in such redemption notice (which may not be later than the Call Date)
against payment of the redemption price (including all accumulated accrued and unpaid dividends to the Call Date, determined as set forth
in paragraph (d) of this Section 5). No interest shall accrue for the benefit of the holders of Series A Preferred Stock to be redeemed
on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of six months from
the Call Date shall revert to the general funds of the Corporation after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Corporation for the payment of such cash.
Section
6. Status of Acquired Shares. All shares of Series A Preferred Stock issued and redeemed by the Corporation in accordance with
Section 5 hereof, or otherwise acquired by the Corporation, shall be restored to the status of authorized but unissued shares of undesignated
Preferred Stock of the Corporation.
Section
7. Ranking. Any class or series of shares of stock of the Corporation shall be deemed to rank:
(a)
prior to the Series A Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if the holders of such class or series shall be entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution, winding up or Change of Control, as the case may be, in preference or priority to the holders of Series
A Preferred Stock (“Senior Shares”);
(b)
on a parity with the Series A Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share
thereof be different from those of the Series A Preferred Stock, if the holders of such class or series and the Series A Preferred Stock
shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution, winding up or Change of Control
in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or
priority one over the other (“Parity Shares”); and
(c)
junior to the Series A Preferred Stock, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if such class or series shall be the Common Shares or any other class or series of shares of stock of
the Corporation now or hereafter issued and outstanding over which the Series A Preferred Stock have preference or priority in the payment
of dividends and in the distribution of assets upon any liquidation, dissolution, winding up or Change of Control of the Corporation
(“Junior Shares”).
Section
8. Voting Rights.
(a)
So long as any shares of Series A Preferred Stock are outstanding, the affirmative vote of the holders of more than fifty percent (50%)
of the Series A Preferred Stock then outstanding, given in person or by proxy, either in writing without a meeting or by vote at any
meeting called for the purpose, shall be necessary for effecting or validating:
(i)
Any amendment, alteration or repeal of any provisions of the Certificate of Incorporation or this Certificate that adversely affects
the rights, preferences or voting power of the Series A Preferred Stock; provided, however, that the amendment of the Certificate of
Incorporation to authorize or create, or to increase the authorized amount of, the Series A Preferred Stock, any Parity Shares or any
Junior Shares shall not be deemed to materially or adversely affect the rights, preferences or voting power of the Series A Preferred
Stock;
(ii)
A statutory share exchange, consolidation with or merger of the Corporation with or into another entity or consolidation of the Corporation
with or merger of another entity into the Corporation, that in each case adversely affects the rights, preferences or voting power of
the Series A Preferred Stock, unless in such case each share of Series A Preferred Stock shall be converted into or exchanged for an
amount of cash equal to or greater than the applicable redemption price called for under Section 5 hereof at the time of such conversion
or exchange or preferred shares of the surviving entity having preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or distributions, qualifications and terms or conditions of redemption thereof that are substantially the
same as that of a share of Series A Preferred Stock;
(iii)
The authorization, reclassification or creation of, or the increase in the authorized amount of, any Senior Shares; or
(iv)
Approving any waiver or amendment of the restrictions set forth in paragraphs (d) or (e) of Section 3 hereof; provided, however,
that no such vote of the holders of Series A Preferred Stock shall be required if, at or prior to the time when any of the above actions
is to take effect, a deposit is made for the redemption in cash of all shares of Series A Preferred Stock at the time outstanding, as
provided in paragraph (f) of Section 5 hereof, for a redemption price called for under Section 5 at the time of such redemption.
(b)
For purposes of paragraph (a) of this Section 8, each share of Series A Preferred Stock shall have one vote per share. Except as required
by applicable provisions of the DGCL, the Series A Preferred Stock shall not have any relative, participating, optional or other special
voting rights and powers other than as set forth herein, and the consent of the holders thereof shall not be required for the taking
of any corporate action. No amendment to these terms of the Series A Preferred Stock shall require the vote of the holders of Common
Shares (except as required by law) or any other series of Preferred Stock.
Section
9. Information Rights. During any period in which the Corporation is not subject to Section 13 or 15(d) of the Exchange Act and
any shares of Series A Preferred Stock are outstanding, the Corporation shall (a) transmit by mail to all holders of Series A Preferred
Stock, as their names and addresses appear in the Corporation’s record books and without cost to such holders, copies of the annual
reports and quarterly reports that the Corporation would have been required to file with the Securities and Exchange Commission (the
“SEC”) pursuant to Section 13 or 15(d) of the Exchange Act if the Corporation was subject to such sections
(other than any exhibits that would have been required); and (b) promptly upon written request, supply copies of such reports to any
prospective holder of Series A Preferred Stock. The Corporation shall mail the reports to the holders of Series A Preferred Stock within
15 days after the respective dates by which the Corporation would have been required to file the reports with the SEC if the Corporation
were then subject to Section 13 or 15(d) of the Exchange Act, assuming the Corporation is a “non-accelerated filer”
in accordance with the Exchange Act.
Section
10. Record Holders. The Corporation and the Transfer Agent shall deem and treat the record holder of any shares of Series A Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be affected by
any notice to the contrary.
Section
11. Sinking Fund. The Series A Preferred Stock shall not be entitled to the benefits of any retirement or sinking fund.
Section
12. No Conversion Right. Except as set forth in paragraph (b) of Section 5, the shares of Series A Preferred Stock are not convertible
into or exchangeable for any other property or securities of the Corporation.
Section
13. Uncertificated Book-Entry Securities. The Series A Preferred Stock shall be issued as book-entry securities directly registered
in the stockholder’s name on the Corporation’s books and records. The Series A Preferred Stock shall not be represented by
certificates but instead shall be uncertificated securities of the Corporation.
ANNEX
B
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATION OF RIGHTS AND PREFERENCES
SERIES
B CUMULATIVE PREFERRED STOCK
Section
1. Number of Shares and Designation. This series of Preferred Stock shall be designated as Series B Cumulative Preferred Stock,
par value $0.0001 per share (the “Series B Preferred Stock”), and the number of shares that shall constitute
such series shall be 4,900,000.
Section
2. Definitions. For purposes of the Series B Preferred Stock and as used in this Certificate, the following terms shall have
the meanings indicated:
“Business
Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions
in New York, New York are not required to be open.
“Call
Date” shall have the meaning set forth in paragraph (c) of Section 5 hereof.
“Certificate”
shall mean this Certificate of Designation of Rights and Preferences of the Series B Preferred Stock.
“Change
of Control” shall mean when, after the original issuance of the Series B Preferred Stock, any of the following has
occurred and is continuing: (i) any sale, lease, or transfer, exclusive license or other dispositions (or series of sales, leases, transfers,
exclusive licenses or other dispositions) of all or substantially all of the assets of the Corporation and its subsidiaries; (ii) any
sale, transfer or issuance (or series of sales, transfers or issuances) of capital stock by the Corporation or the holders of Common
Shares (or other Voting Stock of the Corporation) that results in the inability of the record holders of Common Shares (or other Voting
Stock of the Corporation) immediately prior to such sale, transfer or issuance to designate or elect a majority of the board of directors
(or its equivalent) of the Corporation; or (iii) any merger, consolidation, recapitalization or reorganization of the Corporation with
or into another Person (whether or not the Corporation is the surviving corporation) that results in the inability of the record holders
of Common Shares (or other Voting Stock of the Corporation) immediately prior to such merger, consolidation, recapitalization or reorganization
to designate or elect a majority of the FAT Board; provided, that a Change of Control shall not include a change in the record
holders of Common Shares (or other Voting Stock of the Corporation) resulting from a distribution or issuance of Common Shares (or other
Voting Stock of the Corporation) to any of the record or beneficial stockholders of Fog Cutter Capital Group, Inc. (“FCCG”),
whether upon dissolution, liquidation or reorganization of FCCG or its entity stockholders, or upon a merger, acquisition or other business
combination transaction involving FCCG and the Corporation and/or its subsidiaries.
“Common
Shares” shall mean the shares of common stock, $0.0001 par value, of the Corporation, and shares of any other class
of securities into which such securities may hereafter be reclassified or exchanged.
“Dividend
Payment Date” shall have the meaning set forth in paragraph (a) of Section 3 hereof.
“Dividend
Period” shall mean each calendar monthly periods commencing on the first day of each calendar month and ending on
and including the last day of each calendar month; provided, however, that any Dividend Period during which any Series B Preferred
Stock shall be redeemed pursuant to Section 5 hereof shall end on but shall not include the Call Date only with respect to the Series
B Preferred Stock being redeemed.
“Dividend
Rate” shall mean 8.25% per annum.
“Dividend
Record Date” shall have the meaning set forth in paragraph (a) of Section 3 hereof.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended.
“FAT
Board” shall mean the board of directors of the Corporation or any committee of members of the board of directors
authorized by such board to perform any of its responsibilities with respect to the Series B Preferred Stock.
“Issue
Date” shall mean the original date of issuance of Series B Preferred Stock, or July 16, 2020.
“Junior
Shares” shall have the meaning set forth in subparagraph (a)(iii) of Section 7 hereof.
“Nonpayment
Event” shall have the meaning set forth in subparagraph (b)(i) of Section 8 hereof.
“Parity
Shares” shall have the meaning set forth in subparagraph (a)(ii) of Section 7 hereof.
“Penalty
Event” shall have the meaning set forth in paragraph (b) of Section 3 hereof.
“Penalty
Rate” shall mean 10.0% per annum.
“Person”
shall mean any individual, firm, partnership, limited liability company, corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
“SEC”
shall have the meaning set forth in Section 9 hereof.
“Securities
Act” shall mean the U.S. Securities Act of 1933, as amended.
“Senior
Shares” shall have the meaning set forth in subparagraph (a)(i) of Section 7 hereof.
“Series
B Preferred Stock” shall have the meaning set forth in Section 1 hereof.
“set
apart for payment” shall be deemed to include, without any further action, the following: the recording by the Corporation
in its accounting ledgers of any accounting or bookkeeping entry that indicates, pursuant to an authorization by the FAT Board and a
declaration of dividends or other distribution by the Corporation, the initial and continued allocation of funds to be so paid on any
series or class of shares of stock of the Corporation; provided, however, that if any funds for any class or series of Junior
Shares or any class or series of Parity Shares are placed in a separate account of the Corporation or delivered to a disbursing, paying
or other similar agent, then “set apart for payment” with respect to the Series B Preferred Stock shall mean irrevocably
placing such funds in a separate account or irrevocably delivering such funds to a disbursing, paying or other similar agent.
“Transfer
Agent” means VStock Transfer, LLC, or such other agent or agents of the Corporation as may be designated by the
FAT Board or its duly authorized designee as the transfer agent, registrar and dividend disbursing agent for the Series B Preferred Stock.
“Voting
Stock” shall mean stock of any class or kind having the power to vote generally for the election of directors.
Section
3. Dividends.
(a)
Holders of Series B Preferred Stock shall be entitled to receive, when, as and if declared by the FAT Board or a duly authorized committee
thereof, in its sole discretion, out of funds of the Corporation legally available for the payment of distributions, cumulative preferential
cash dividends at a rate per annum equal to the Dividend Rate multiplied by $25.00 per share stated liquidation preference of the Series
B Preferred Stock (subject to adjustment as set forth in paragraphs (b) and (c) of this Section 3). Such dividends shall accrue without
interest and accumulate, whether or not earned or declared, on each issued and outstanding share of the Series B Preferred Stock from
(and including) the original date of issuance of such share and shall be payable monthly in arrears on a date selected by the Corporation
each calendar month that is no later than twenty (20) days following the end of each calendar month (each such day being hereinafter
called a “Dividend Payment Date”); provided, that (i) Series B Preferred Stock issued during any Dividend
Period after the Dividend Record Date for such Dividend Period shall only begin to accrue dividends on the first day of the next Dividend
Period; and provided, further, that (ii) if any Dividend Payment Date is not a Business Day, then the dividend that would
otherwise have been payable on such Dividend Payment Date (if declared) may be paid on the next succeeding Business Day with the same
force and effect as if paid on such Dividend Payment Date, and no interest or additional dividends or other sums shall accrue on the
amount so payable from such Dividend Payment Date to such next succeeding Business Day. Any dividend payable on the Series B Preferred
Stock for any partial Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months.
Dividends shall be payable to holders of record as they appear in the stock records of the Corporation at the close of business on the
applicable record date, which shall be the fifteenth day of the month in which the applicable Dividend Payment Date occurs, or such other
date designated by the FAT Board or an officer of the Corporation duly authorized by the FAT Board for the payment of dividends that
is not more than 30 nor less than ten days prior to such Dividend Payment Date (each such date, a “Dividend Record Date”).
(b)
If the Corporation fails to pay dividends on the Series B Preferred Stock provided for in paragraph (a) of this Section 3 in full for
any twelve (12) accumulated, accrued and unpaid Dividend Periods, whether consecutive or non-consecutive (a “Penalty Event”),
then:
(i)
the Dividend Rate shall increase to the Penalty Rate, commencing on the first day after the Dividend Payment Date on which a Penalty
Event occurs and for each subsequent Dividend Payment Date thereafter until such time as the Corporation has paid all accumulated accrued
and unpaid dividends on the Series B Preferred Stock in full and has paid accrued dividends for all Dividend Periods during the two most
recently completed Dividend Periods in full, at which time the Dividend Rate shall be reinstated; and
(ii)
when the Penalty Event is cured and the Dividend Rate is reinstated, another Penalty Event shall not occur until the Corporation fails
to pay dividends on the Series B Preferred Stock for an additional twelve (12) accumulated, accrued and unpaid Dividend Periods, whether
consecutive or non-consecutive after the prior Penalty Event is cured.
(c)
No dividend on the Series B Preferred Stock will be declared by the Corporation or paid or set apart for payment by the Corporation at
such time as the terms and provisions of any Senior Shares or any agreement of the Corporation, including any agreement relating to its
indebtedness, prohibit such declaration, payment or setting apart for payment or such declaration, payment or setting apart for payment
would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or
prohibited under the DGCL or other applicable law; provided, however, notwithstanding anything to the contrary contained herein,
dividends on the Series B Preferred Stock shall continue to accrue without interest and accumulate regardless of whether: (i) any or
all of the foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the
payment of such dividends; or (iv) such dividends are authorized by the FAT Board. Accrued and unpaid dividends on the Series B Preferred
Stock will accumulate as of the Dividend Payment Date on which they first become payable or on the date of redemption of the Series B
Preferred Stock, as the case may be.
(d)
Except as provided in the next sentence, if any Series B Preferred Stock is outstanding, no dividends will be declared or paid or set
apart for payment on any Parity Shares or Junior Shares, unless all accumulated accrued and unpaid dividends are contemporaneously declared
and paid in cash, or declared and a sum of cash sufficient for the payment thereof is set apart for payment, on the Series B Preferred
Stock for all past Dividend Periods with respect to which full dividends were not paid on the Series B Preferred Stock in cash. When
dividends are not paid in full (or a sum sufficient for such full payment is not so set apart for payment) upon the Series B Preferred
Stock and upon all Parity Shares, all dividends declared, paid or set apart for payment upon the Series B Preferred Stock and all such
Parity Shares shall be declared and paid pro rata or declared and set apart for payment pro rata so that the amount of dividends declared
per share of Series B Preferred Stock and per share of such Parity Shares shall in all cases bear to each other the same ratio that accumulated
dividends per share of Series B Preferred Stock and such other Parity Shares (which shall not include any accumulation in respect of
unpaid dividends for prior dividend periods if such other Parity Shares do not bear cumulative dividends) bear to each other. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series B Preferred Stock which
may be in arrears, whether at the Dividend Rate or at the Penalty Rate.
(e)
Except as provided in paragraph (d) of this Section 3, unless all accumulated accrued and unpaid dividends on the Series B Preferred
Stock are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof is set apart for
payment for all past Dividend Periods with respect to which full dividends were not paid on the Series B Preferred Stock, no dividends
(other than payable in shares of Common Stock or Junior Shares ranking junior to the Series B Preferred Stock as to dividends and upon
liquidation) may be declared or paid or set apart for payment upon the Common Stock or any Junior Shares or Parity Shares, nor shall
any Common Stock or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration
(or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation (except by conversion
into or exchange for Junior Shares or by redemption, purchase or acquisition of stock under any employee benefit plan of the Corporation).
(f)
Holders of Series B Preferred Stock shall not be entitled to any dividend in excess of all accumulated accrued and unpaid dividends on
the Series B Preferred Stock as described in this Section 3. Any dividend payment made on the Series B Preferred Stock shall first be
credited against the earliest accumulated accrued and unpaid dividend due with respect to such shares which remains payable at the time
of such payment.
Section
4. Liquidation Preference.
(a)
Subject to the rights of the holders of Senior Shares and Parity Shares, in the event of any liquidation, dissolution, winding up or
Change of Control of the Corporation, whether voluntary or involuntary, before any payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for the holders of Junior Shares as to the distribution of assets on any liquidation,
dissolution, winding up or Change of Control of the Corporation, each holder of the Series B Preferred Stock shall be entitled to receive
an amount of cash equal to $25.00 per share of Series B Preferred Stock plus an amount in cash equal to all accumulated accrued and unpaid
dividends thereon (whether or not earned or declared) to the date of final distribution to such holders. If, upon any liquidation, dissolution,
winding up or Change of Control of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders
of the Series B Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any
other shares of any class or series of Parity Shares as to the distribution of assets on any liquidation, dissolution, winding up or
Change of Control of the Corporation, then such assets, or the proceeds thereof, shall be distributed among the holders of Series B Preferred
Stock and any such other Parity Shares ratably in accordance with the respective amounts that would be payable on such Series B Preferred
Stock and any such other Parity Shares if all amounts payable thereon were paid in full.
(b)
Written notice of any such liquidation, dissolution, winding up or Change of Control of the Corporation, stating the payment date or
dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first
class mail, postage pre-paid, not less than 20 nor more than 60 days prior to the payment date stated therein, to each record holder
of Series B Preferred Stock at the respective address of such holders as the same shall appear on the stock transfer records of the Corporation.
Subject
to the rights of the holders of Senior Shares and Parity Shares upon liquidation, dissolution, winding up or Change of Control, upon
any liquidation, dissolution, winding up or Change of Control of the Corporation, after payment shall have been made in full to the holders
of the Series B Preferred Stock, as provided in this Section 4, any other series or class or classes of Junior Shares shall, subject
to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series B Preferred Stock shall not be entitled to share therein.
Section
5. Redemption.
(a)
Optional Redemption at Election of Corporation. The Corporation may redeem the Series B Preferred Stock, in whole at any time
or from time to time in part, at the option of the Corporation, for cash, at the following redemption price per share of Series B Preferred
Stock, plus any unpaid dividends indicated in paragraph (b) of this Section 5:
(i)
After July 16, 2020 and on or prior to July 16, 2021: $27.50 per share.
(ii)
After July 16, 2021 and on or prior to July 16, 2022: $27.00 per share.
(iii)
After July 16, 2022 and on or prior to July 16, 2023: $26.50 per share.
(iv)
After July 16, 2023 and on or prior to July 16, 2024: $26.00 per share.
(v)
After July 16, 2024 and on or prior to July 16, 2025: $25.50 per share.
(vi)
After July 16, 2025: $25.00 per share.
If
fewer than all of the outstanding shares of Series B Preferred Stock are to be redeemed pursuant to the Corporation’s exercise
of its redemption right under this paragraph (a), the shares to be redeemed shall be selected pro rata (as nearly as practicable without
creating fractional shares) or by lot or in such other equitable method prescribed by the Corporation.
(b)
Unpaid Dividends. Upon any redemption of Series B Preferred Stock pursuant to this Section 5, the Corporation shall, subject to
the next sentence, pay any accumulated accrued and unpaid dividends in arrears for any Dividend Period ending on or prior to the Call
Date. If the Call Date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, then each holder of Series
B Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided
above, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on Series B Preferred Stock
called for redemption.
(c)
Redemption Procedures. Notice of the redemption of any Series B Preferred Stock under paragraph (a) of this Section 5 shall be
mailed by first class mail to each holder of record of Series B Preferred Stock to be redeemed at the address of each such holder as
shown on the Corporation’s records, not less than 20 nor more than 60 days prior to the date of redemption (the “Call
Date”). Neither the failure to mail any notice required by this paragraph (c), nor any defect therein or in the mailing
thereof, to any particular holder, shall affect the sufficiency of the notice or the validity of the proceedings for redemption with
respect to the other holders. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given
on the date mailed whether or not the holder receives the notice. Each such mailed notice shall state, as appropriate: (1) the Call Date;
(2) the number of shares of Series B Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed,
the number of such shares to be redeemed from such holder; (3) the redemption price per share of Series B Preferred Stock (determined
as set forth in paragraph (a) of this Section 5) plus accumulated accrued and unpaid dividends through the Call Date (determined as set
forth in paragraph (b) of this Section 5); (4) if any shares are represented by certificates, the place or places at which certificates
for such shares are to be surrendered; (5) that dividends on the shares to be redeemed shall cease to accrue on such Call Date except
as otherwise provided herein; and (6) any other information required by law or by the applicable rules of any exchange or national securities
market upon which the Series B Preferred Stock may be listed or admitted for trading. Notice having been mailed as aforesaid, from and
after the Call Date (unless the Corporation shall fail to make available an amount of cash necessary to effect such redemption), (i)
except as otherwise provided herein, dividends on the Series B Preferred Stock so called for redemption shall cease to accrue, (ii) said
shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Series B Preferred Stock
shall cease (except the right to receive cash payable upon such redemption, without interest thereon, upon surrender and endorsement
of their certificates if so required and to receive any dividends payable thereon).
(d)
Set Asides. The Corporation’s obligation to provide cash in accordance with the preceding subsection shall be deemed fulfilled
if, on or before the Call Date, the Corporation shall irrevocably deposit funds necessary for such redemption, in trust, with a bank
or trust company that has, or is an affiliate of a bank or trust company that has, capital and surplus of at least $50 million, with
irrevocable instructions that such cash be applied to the redemption of the Series B Preferred Stock so called for redemption, in which
case the notice to holders of the Series B Preferred Stock will (i) state the date of such deposit, (ii) specify the office of such bank
or trust company as the place of payment of the redemption price and (iii) require such holders to surrender the certificates, if any,
representing such shares at such place on or about the date fixed in such redemption notice (which may not be later than the Call Date)
against payment of the redemption price (including all accumulated accrued and unpaid dividends to the Call Date, determined as set forth
in paragraph (b) of this Section 5). No interest shall accrue for the benefit of the holders of Series B Preferred Stock to be redeemed
on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of six months from
the Call Date shall revert to the general funds of the Corporation after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Corporation for the payment of such cash.
(e)
Limitations on Redemption.
(i)
If all accumulated accrued and unpaid dividends on the Series B Preferred Stock and any other class or series of Parity Shares of the
Corporation have not been paid in cash (or, with respect to any Parity Shares, in Parity Shares), or declared and set apart for payment
in cash (or, with respect to any Parity Shares, in Parity Shares), then the Corporation shall not redeem, purchase or acquire any shares
of Series B Preferred Stock or Parity Shares, otherwise than (A) pursuant to a purchase or exchange offer made on the same terms to all
holders of Series B Preferred Stock and Parity Shares or (B) in exchange for Junior Shares.
(ii)
The Corporation shall not redeem, purchase or acquire any shares of Series B Preferred Stock or Parity Shares at such time as (A) the
terms and provisions of any Senior Shares or any agreement of the Corporation, including any agreement relating to its indebtedness,
prohibit such redemption, purchase or acquisition, or such redemption, purchase or acquisition would constitute a breach thereof or a
default thereunder, (B) if such redemption, purchase or acquisition is restricted or prohibited under the DGCL or other applicable law,
or (C) at any time that any optional or mandatory redemption has been triggered for any other shares of Series B Preferred Stock or Parity
Shares and has reached the final time required for payment.
Section
6. Status of Acquired Shares. All shares of Series B Preferred Stock issued and redeemed by the Corporation in accordance with
Section 5 hereof, or otherwise acquired by the Corporation, shall be restored to the status of authorized but unissued shares of undesignated
Preferred Stock of the Corporation.
Section
7. Ranking.
(a)
Any class or series of shares of stock of the Corporation shall be deemed to rank:
(i)
prior to the Series B Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if the holders of such class or series shall be entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution, winding up or Change of Control, as the case may be, in preference or priority to the holders of Series
B Preferred Stock (“Senior Shares”);
(ii)
on a parity with the Series B Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share
thereof be different from those of the Series B Preferred Stock, if the holders of such class or series and the Series B Preferred Stock
shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution, winding up or Change of Control
in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or
priority one over the other (“Parity Shares”); and
(iii)
junior to the Series B Preferred Stock, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if such class or series shall be the Common Shares or any other class or series of shares of stock of
the Corporation now or hereafter issued and outstanding over which the Series B Preferred Stock have preference or priority in the payment
of dividends and in the distribution of assets upon any liquidation, dissolution, winding up or Change of Control of the Corporation
(“Junior Shares”).
(b)
The Corporation’s Series A Fixed Rate Cumulative Preferred Stock shall be considered Senior Shares relative to the Series B Preferred
Stock. The Corporation’s Series A-1 Fixed Rate Cumulative Preferred Stock shall be considered Parity Shares relative to the Series
B Preferred Stock. The Corporation’s Common Shares shall be considered Junior Shares relative to the Series B Preferred Stock.
Section
8. Voting Rights.
(a)
General. For purposes of this Section 8, each share of Series B Preferred Stock shall have one vote per share. Except as required
by applicable provisions of the DGCL or the Certificate of Incorporation, the Series B Preferred Stock shall not have any other relative,
participating, optional or other special voting rights and powers other than as set forth in this Section 8, and the consent of the holders
thereof shall not be required for the taking of any corporate action. No amendment to these terms of the Series B Preferred Stock shall
require the vote of the holders of Common Shares (except as required by law) or any other series of Preferred Stock.
(b)
Right to Elect Two Directors Upon Nonpayment.
(i)
If the Corporation fails to pay dividends on the Series B Preferred Stock provided for in paragraph (a) of Section 3 in full for any
eighteen (18) accumulated, accrued and unpaid Dividend Periods, whether consecutive or non-consecutive (a “Nonpayment Event”),
then the authorized number of directors on the FAT Board shall, at the next annual meeting of stockholders or at a special meeting of
stockholders as provided below, automatically be increased by two (2) and the holders of Series B Preferred Stock, voting together as
a single class, shall be entitled, at the Corporation’s next annual meeting of stockholders or at a special meeting of stockholders
as provided below, to vote for the election of a total of two (2) additional members of the FAT Board (the “Preferred Stock
Directors”); provided that the election of any such Preferred Stock Directors will not cause the Corporation to
violate the corporate governance requirements of The NASDAQ Stock Market LLC (or any other exchange or automated quotation system on
which the Corporation’s securities may be listed or quoted) that requires listed or quoted companies to have a majority of independent
directors or other applicable law; provided further, that such none of the Preferred Stock Directors shall be subject to any “Bad
Actor” disqualifications described in Rule 506(d)(l)(i) to (viii) under the Securities Act, except for a Disqualifying Event covered
by Rule 506(d2) or (d)(3); and provided further, that the FAT Board shall, at no time, include more than two (2) Preferred Stock
Directors.
(ii)
In the event of a Nonpayment Event, the holders of at least 25% of the outstanding shares of Series B Preferred Stock may request that
a special meeting of stockholders be called to elect such Preferred Stock Directors; provided, however, to the extent permitted
by the Corporation’s bylaws in effect from time to time, if the next annual or a special meeting of stockholders is scheduled to
be held within ninety (90) days of the receipt of such request, the election of such Preferred Stock Directors shall be included in the
agenda for, and shall be held at, such scheduled annual or special meeting of stockholders. The Preferred Stock Directors shall stand
for reelection annually, at each subsequent annual meeting of the stockholders, so long as the holders of Series B Preferred Stock continue
to have such voting rights. At any meeting at which the holders of Series B Preferred Stock are entitled to elect Preferred Stock Directors,
the holders of record of at least thirty-three and one-third percent (33 1/3%) of the then outstanding shares of Series B Preferred Stock,
present in person or represented by proxy, shall constitute a quorum and the vote of the holders of record of a majority of such shares
of Series B Preferred Stock so present or represented by proxy at any such meeting at which there shall be a quorum shall be sufficient
to elect the Preferred Stock Directors.
(iii)
If and when all accumulated and unpaid Dividends on Series B Preferred Stock have been paid in full (a “Nonpayment Remedy”),
the holders of Series B Preferred Stock shall immediately and, without any further action by the Corporation, be divested of the voting
rights described in this paragraph (b), subject to the revesting of such rights in the event of each subsequent Nonpayment Event. If
such voting rights for the holders of Series B Preferred Stock shall have terminated, the term of office of each Preferred Stock Director
so elected shall terminate at such time and the authorized number of directors on the FAT Board shall automatically decrease by two (2)
members.
(iv)
Any Preferred Stock Director may be removed at any time, with or without cause, by the holders of a majority in voting power of the outstanding
shares of Series B Preferred Stock then outstanding when they have the voting rights described in this paragraph (b). In the event that
a Nonpayment Event shall have occurred and there shall not have been a Nonpayment Remedy, any vacancy in the office of a Preferred Stock
Director (other than prior to the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the written
consent of the Preferred Stock Director remaining in office, except in the event that such vacancy is created as a result of such Preferred
Stock Director being removed or if no Preferred Stock Director remains in office, such vacancy may be filled by a vote of the holders
of a majority in voting power of the outstanding shares of Series B Preferred Stock then outstanding when they have the voting rights
described above; provided that the election of any such Preferred Stock Directors to fill such vacancy will not cause the Corporation
to violate the corporate governance requirements of The NASDAQ Stock Market LLC (or any other exchange or automated quotation system
on which the Corporation’s securities may be listed or quoted) that requires listed or quoted companies to have a majority of independent
directors or other applicable law. The Preferred Stock Directors shall each be entitled to one vote per director on any matter that may
come before the FAT Board for a vote.
(c)
Other Voting Rights. So long as any shares of Series B Preferred Stock are outstanding, the affirmative vote of the holders of
more than fifty percent (50%) of the Series B Preferred Stock then outstanding, given in person or by proxy, either in writing without
a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating:
(i)
Any amendment, alteration or repeal of any provisions of the Certificate of Incorporation or this Certificate that materially and adversely
affects the rights, preferences or voting power of the Series B Preferred Stock; provided, however, that the amendment of the
Certificate of Incorporation to authorize or create, or to increase or decrease the authorized amount of, the Series B Preferred Stock,
or any Senior Shares, Parity Shares or Junior Shares, shall not be deemed to materially or adversely affect the rights, preferences or
voting power of the Series B Preferred Stock;
(ii)
A statutory share exchange, consolidation with or merger of the Corporation with or into another entity or consolidation of the Corporation
with or merger of another entity into the Corporation, that in each case materially and adversely affects the rights, preferences or
voting power of the Series B Preferred Stock, unless in such case each share of Series B Preferred Stock shall be converted into or exchanged
for an amount of cash equal to or greater than the applicable redemption price called for under Section 5 hereof at the time of such
conversion or exchange or preferred shares of the surviving entity having preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or distributions, qualifications and terms or conditions of redemption thereof that are materially the same
as that of a share of Series B Preferred Stock; or
(iii)
Approving any waiver or amendment of the restrictions set forth in paragraphs (d) or (e) of Section 3 hereof;
provided,
however, that no such vote of the holders of Series B Preferred Stock shall be required if, at or prior to the time when any of the above
actions is to take effect, a deposit is made for the redemption in cash of all shares of Series B Preferred Stock at the time outstanding,
as provided in paragraph (d) of Section 5 hereof, for a redemption price called for under Section 5 at the time of such redemption.
(d)
Amendments without Holder Consent. Without the vote or consent of the holders of Series B Preferred Stock, so long as such action
does not adversely affect the special rights, preferences, privileges or voting powers of the Series B Preferred Stock and limitations
and restrictions thereof, the Corporation may amend, alter, supplement or repeal any terms of the Series B Preferred Stock to:
(i)
to cure any ambiguity or mistake, or to correct or supplement any provision contained in this Certificate that may be defective or inconsistent
with any other provision contained in this Certificate;
(ii)
to make any provision with respect to matters or questions relating to the Series B Preferred Stock that is not inconsistent with the
provisions of the Certificate of Incorporation or this Certificate; or
(iii)
to waive any of the Corporation’s rights with respect to the Series B Convertible Preferred Stock.
Section
9. Information Rights. During any period in which the Corporation is not subject to Section 13 or 15(d) of the Exchange Act and
any shares of Series B Preferred Stock are outstanding, the Corporation shall (a) transmit by mail to all holders of Series B Preferred
Stock, as their names and addresses appear in the Corporation’s record books and without cost to such holders, copies of the annual
reports and quarterly reports in substantially the same form that the Corporation would have been required to file with the Securities
and Exchange Commission (the “SEC”) pursuant to Section 13 or 15(d) of the Exchange Act if the Corporation
was subject to such sections (other than any exhibits that would have been required); and (b) promptly upon written request, supply copies
of such reports to any prospective holder of Series B Preferred Stock. The Corporation shall mail the reports to the holders of Series
B Preferred Stock within 15 days after the respective dates by which the Corporation would have been required to file the reports with
the SEC if the Corporation were then subject to Section 13 or 15(d) of the Exchange Act, assuming the Corporation is a “non-accelerated
filer” in accordance with the Exchange Act.
Section
10. Record Holders. The Corporation and the Transfer Agent shall deem and treat the record holder of any shares of Series B Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be affected by
any notice to the contrary.
Section
11. Sinking Fund. The Series B Preferred Stock shall not be entitled to the benefits of any retirement or sinking fund.
Section
12. No Conversion Right. The shares of Series B Preferred Stock are not convertible into or exchangeable for any other property
or securities of the Corporation.
Section
13. Form of Security. The Series B Preferred Stock shall be issued as book-entry securities directly registered in the stockholder’s
name on the Corporation’s books and records or, if requested by any holder of the Series B Preferred Stock, such holder’s
shares may be issued in certificated form.
APPENDIX
B
SECOND
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FAT
BRANDS INC.
(a
Delaware corporation)
ARTICLE
I
NAME
The
name of the corporation is FAT Brands Inc. (the “Corporation”).
ARTICLE
II
REGISTERED
OFFICE
The
address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The name of the registered agent of the corporation at such address is The Corporation Trust Company.
ARTICLE
III
PURPOSE
The
purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under
the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE
IV
STOCK
SECTION
4.01 Authorized Stock. The aggregate number
of shares of all classes of capital stock which the Corporation shall have authority to issue
is Fifty-Six Million Six Hundred Thousand (56,600,000) Thirty
Million (30,000,000) shares, consisting of which
Twenty-Five(i) Fifty Million (2550,000,000,000),
shall consist of) shares of common stockClass
A Common Stock, par value $0.0001 per share (“Common Stock”),Class
A Common Stock”); (ii) One Million Six Hundred Thousand (1,600,000) shares of Class B Common Stock, par value $0.0001 per share
(“Class B Common Stock” and together with the Class A Common Stock, “Common
Stock”); and (iii) Five Million (5,000,000) shall consist of shares
of preferred stock, par value $0.0001 per share (“Preferred Stock”).
SECTION
4.02 Common Stock.
Upon
this Second Amended and Restated Certificate of Incorporation of the Corporation (“Certificate of Incorporation”) becoming
effective pursuant to the DGCL (the “Effective Time”), and without any further action on the part of the Corporation or its
stockholders, each whole share of the Corporation’s common stock, $0.0001 par value per share, issued and outstanding or held by
the Corporation in treasury immediately prior to the Effective Time (the “Old Common Stock”) shall automatically be reclassified,
changed and converted into one fully paid and non- assessable share of Class A Common Stock, and certificates previously representing
shares of Old Common Stock shall represent the appropriate number of whole shares of Class A Common Stock, into which such Old Common
Stock shall have been reclassified, changed and converted pursuant to this Certificate of Incorporation.
SECTION
4.02 Common Stock.
(a)
Equal Status. Except as otherwise required by the DGCL or expressly provided in this Article IV, the powers, preferences and rights
of the Class A Common Stock and the Class B Common Stock, and the qualifications, limitations or restrictions thereof, shall be in all
respects identical.
(b)
Voting.
(i)
General. Except
as otherwise provided (i) by the DGCL, (ii) by this Certificate of Incorporation, (iii) by
Section 4.03 of this Article IV, or (iiiiv)
by the terms of any certificate of designation with respect to any series of Preferred Stock, and subject to the rights of the holders
of shares of Preferred Stock, if any, at any annual or special meeting of the stockholders of the Corporation and
with respect to any action by written consent of the stockholders in lieu of a meeting, the entire voting power of the shares
of the Corporation for the election of directors of the Corporation and on other matters properly
submitted to a vote of the stockholders shall be vested exclusively in the holders of the shares of Common Stock that
are issued and outstanding and the holders of shares of Class A Common Stock and Class B Common Stock
shall at all times vote together as a single class; provided, however, that, except as otherwise required by
lawthe DGCL, holders of shares of Common
Stock shall not be entitled to vote on any amendment to this Amended and Restated
Certificate of Incorporation (“Certificate of Incorporation”)
that relates solely to the terms, number of shares, powers, designations, preferences or relative, participating, optional
or other special rights (including, without limitation, voting rights), or to qualifications, limitations or restrictions thereof, of
one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together
with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation or pursuant to the DGCL.
The holdersnumber of authorized
shares of Class A Common Stock shallor
Class B Common Stock may be entitled to oneincreased
or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote for
each share on each matter properly submitted to the stockholdersof the holders of a majority
in voting power of the stock of the Corporation on which the holders of shares of Common
Stock are entitled to vote. The holders of shares of Common Stock shall not have
cumulative voting rights thereon irrespective of the provisions of Section 242(b)(2) of
the DGCL.
(ii)
Class A Common Stock. Each holder of shares of Class A Common Stock shall be entitled to one (1) vote for each share of Class A Common
Stock held as of the applicable date on any matter that is submitted to a vote or for the consent of the stockholders of the Corporation.
So long as any shares of Class A Common Stock remain outstanding, and in addition to any vote required by law or any other provision
of this Certificate of Incorporation, the affirmative vote of the holders of a majority of the then outstanding shares of Class A Common
Stock, voting as a separate class, shall be required in order to amend (whether by merger, consolidation or otherwise) the Certificate
of Incorporation so as to (A) alter or change the powers, preferences or special rights of the shares of Class A Common Stock so as to
affect them adversely, (B) increase the voting rights of the Class B Common Stock or to alter, change or provide additional powers, preferences
or other special rights to the Class B Common Stock, or (C) increase the number of authorized shares of Class B Common Stock except in
the minimum amount necessary to accommodate a proportional split of outstanding shares of Class B Common Stock in compliance with Section
4.02(h).
(iii)
Class B Common Stock. Each holder of shares of Class B Common Stock shall be entitled to two thousand (2,000) votes for each share of
Class B Common Stock held as of the applicable date on any matter that is submitted to a vote or for the consent of the stockholders
of the Corporation.
(iv)
No Cumulative Voting. Neither the holders of shares of Class A Common Stock nor the holders of shares of Class B Common Stock shall have
cumulative voting rights.
(c)
Dividends.
and Other Distributions.
(ii)(i)
Subject to the rights, if any, of the holders of
any outstanding series of Preferred Stock, and the provisions of this
Section 4.02(c), the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions
(payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the board of directors of the Corporation
(the “Board of Directors”) from time to time out of any assets or funds of the Corporation legally available therefor
and shall share equally on a per share basis in such dividends and distributions. No dividend may be
paid on one class of Common Stock unless a dividend is paid simultaneously on the other class of Common Stock in accordance with this
Section 4.02(c).
(ii)
Liquidation. In the event
of any voluntary or involuntary dissolution, liquidation or winding up of the Corporation, after payment or provision for payment of
the debts and other liabilitiesIf
the Board of Directors determines to provide the record holders of one class of Common Stock the option to receive a dividend in cash
or in capital stock of the Corporation, and
subject to the rights of the same option must be simultaneously provided to
the holdersother class of any
outstanding series of PreferredCommon Stock in
respect thereof,.
(iii)
Dividends payable on the holders
of shares of Common Stock only in shares of capital stock of the Corporation (or rights
to acquire capital stock of the Corporation) shall only be made as follows: (A) in shares of Class A Common Stock (or rights to acquire
Class A Common Stock) to the record holders of Class A Common Stock and to the record holders of Class B Common Stock equally on a per
share basis; (B) solely in connection with a proportionate dividend to effectuate a split of the Common Stock, in shares of Class A Common
Stock to the record holders of Class A Common Stock and in shares of Class B Common Stock to the record holders of Class B Common Stock;
or (C) in any other authorized class or series of capital stock of the Corporation (or rights to acquire any other authorized class or
series of capital stock of the Corporation) to the record holders of Class A Common Stock and to the record holders of Class B Common
Stock equally on a per share basis.
(iv)
Whenever a dividend or distribution provided for in this Certificate of Incorporation shall be payable in non-cash property or shares
of capital stock of the Corporation, the value of such dividend or distribution shall be deemed to be the fair value of such non-cash
property or capital stock of the Corporation, as determined in good faith by the Board of Directors.
(v)
Notwithstanding the foregoing, the Board of Directors may declare and the Corporation may pay a one-time pro rata dividend on the
Class A Common Stock of 0.10 shares of Class B Common Stock promptly following the Effective Time in order to effectuate the recapitalization
of the Old Common Stock into shares of Class A Common Stock and Class B Common Stock.
(d)
Convertibility. Each share of Class B Common Stock shall automatically, without any further action on the part of the Corporation or
the holder thereof, convert into one (1) share of Class A Common Stock upon a date specified by the holders of a majority of the then
outstanding shares of Class B Common Stock (the “Final Conversion Date”). In the event of any conversion of the Class B Common
Stock pursuant to this Section 4.02(d), certificates which represented outstanding shares of Class B Common Stock prior to the Final
Conversion Date will thereafter be deemed to represent a like number of shares of Class A Common Stock and all shares of Class B Common
Stock so converted shall be retired and shall not be reissued by the Corporation. Except as described in this Section 4.02(d), neither
the Class A Common Stock nor the Class B Common Stock shall be convertible into another class of Common Stock or any other security of
the Corporation.
(e)
Mergers or Sales of Assets. The holders of Class A Common
Stock shall be entitled to receive all of the remainingan
amount and form of consideration per share equal to or better than the per share consideration, if any, received by the holders of Class
B Common Stock in any merger, business combination or consolidation of the Corporation (whether or not the Corporation is the surviving
entity) or any subsidiary of the Corporation, or any sale, lease or exchange of all or substantially all of the assets of the Corporation
or any subsidiary of the Corporation (whether or not executed by way of a single transaction or a series of related transactions).
(f)
Liquidation or Dissolution. Upon the liquidation, dissolution or winding up of the Corporation, the holders of Class A Common Stock and
the holders of Class B Common Stock shall share ratably, on a per share basis, in the net assets
of the Corporation available for distribution to itsthe
holders of Common Stock. If any assets of the Corporation distributed to stockholders,
ratably in proportion to the number of shares of Common Stock in connection with any liquidation,
dissolution, or winding up of the Corporation are other than cash, then the value of such assets shall be their fair value as determined
by the Board of Directors in good faith.
(g)
Repurchases. The Corporation shall have the power to purchase, repurchase, exchange, or otherwise acquire shares of either Class A Common
Stock or Class B Common Stock out of funds legally available therefore at any time for such consideration as the Board of Directors determines
in its business judgment, whether or not less consideration could be paid upon the purchase of the same number of shares of another class
of Common Stock. Notwithstanding the foregoing, if at any time in the future the Corporation publicly announces an issuer self tender
offer to concurrently purchase shares of both Class A Common Stock and Class B Common Stock, then the Corporation shall tender to purchase
Class A Common Stock at a per share price and on terms equal to or better than the per share price and terms tendered for Class B Common
Stock.
(h)
Subdivision, Combination and Reclassification of Shares. If the Corporation shall in any manner split or subdivide or combine the outstanding
shares of Class A Common Stock or Class B Common Stock, the outstanding shares of the other such class of Common Stock shall be proportionally
split, subdivided or combined in the same manner and on the same basis as the outstanding shares of the other class of Common Stock have
been split, subdivided or combined. Other than with respect to a reclassification in connection with a split, subdivision or combination
of shares of outstanding Common Stock as provided above, the holders of Class A Common Stock shall be entitled to be treated identically
to the holders of Class B Common Stock on a per share basis in any reclassification or recapitalization of the Common Stock.
(i)
No Preemptive Rights. No holder of Class A Common Stock or Class B Common Stock shall, by reason of such holding, have any preemptive
right to subscribe to any additional issue of stock of any class or series of the Corporation or to any security of the Corporation convertible
into such stock.
(j)
Transfer Restrictions.
(i)
No Class B Holder shall be permitted to Transfer in one transaction or a series of related transactions shares of Class B Common Stock
in excess of 25% of the total outstanding shares of Class B Common Stock to any Person except (i) to such Class B Holder’s Permitted
Transferees, (ii) in the case of a Transfer involving cash consideration, pursuant to a Qualifying Tender Offer by such Person, (iii)
in the case of a merger, business combination or other transaction described in and complying with Section 4.02(e), or (iv) in the case
of a Transfer for solely non-cash consideration, either (x) pursuant to a Transferee Tender Offer consummated prior to or contemporaneously
with the consummation of such Transfer or (y) in the event such Transferee Tender Offer is not consummated, the Corporation, to the extent
permitted by applicable law, prior to or contemporaneously with the consummation of such Transfer, shall consummate a Qualifying Self-Tender
Offer. For the avoidance of doubt, in the case of a proposed Transfer pursuant to clause (iv) of this Section 4.02(j)(i), if a Transferee
Tender Offer is not consummated and the Corporation is not permitted by applicable law to consummate a Qualifying Self-Tender Offer,
no Transfer shall be permitted. Any Transfer in violation of this Section 4.02(j) shall be void ab initio.
(ii)
For purposes of this Section 4.02(j) only:
(A)
an “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect
to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms
“controlling” and “controlled by” have correlative meanings.
(B)
“Charitable Trust” shall mean a trust that is exempt from taxation under Section 501(c)(3) of the United States Internal
Revenue Code of 1986, as amended (or any successor provision thereto) (whether a determination letter with respect to such exemption
is issued before, at or after the Effective Time), and further includes any successor entity that is exempt from taxation under Section
501(c)(3) (or any successor provision thereto) upon a conversion of, or transfer of all or substantially all of the assets of, a Charitable
Trust to such successor entity (whether a determination letter with respect to such successor’s exemption is issued before, at
or after the conversion date)
(C)
“Class B Holder” shall mean a record or beneficial owner of Class B Common Stock together with Affiliates of such Class B
Holder and Permitted Transferees of such Class B Holder.
(D)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, or any successor statute.
(E)
“Family Member” shall mean, with respect to any Class B Holder who is a natural person, the spouse, former spouses, domestic
partners, parents, grandparents, parents-in-law, former parents-in-law, lineal descendants, siblings and lineal descendants of siblings
(in each case whether by blood relation or adoption) of such Class B Holder.
(A)(F)
a “Permitted Transferee” of a Class B Holder shall include (i) such Class B Holder’s Family Members or one or more
bona fide trusts for the benefit of such Family Members, (ii) any Affiliate of such Class B Holder so long as such Affiliate remains
an Affiliate, and (iii) any Charitable Trust created or established by such Class B Holder over which such Class B Holder exercises voting
control. For purposes of this definition, “voting control,” as used with respect to any Charitable Trust, means (i) the power
to exercise any voting rights of beneficial owners of such Charitable Trust and (ii) the ability to direct the voting of any securities
of the Corporation held by themsuch
Charitable Trust.
(G)
“Person” shall mean any natural person, corporation, partnership, limited liability company, firm, association, trust, government,
governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.
(H)
“Qualifying Self-Tender Offer” shall mean a “tender offer” under Rule 13e-4 and Section 14(d) of the Exchange
Act to purchase all shares of Class B Common Stock not owned by the transferring Class B Holder provided that (i) all other Class B Holders
are entitled to participate in such tender offer on a pro rata basis, and (ii) each such Class B Holder tendering shares of Class B Common
Stock in such tender offer shall be entitled to receive an amount per share in cash equal to the fair market value of the non-cash consideration
to be received by the transferring Class B Holder as determined in good faith by the Board of Directors. In the event that the Board
of Directors determines in good faith that the fair market value of such non-cash consideration is less than the fair market value of
the Class B Common Stock, then such tender offer shall be at the fair market value of the Class B Common Stock as determined in good
faith by the Board of Directors.
(I)
“Qualifying Tender Offer” shall mean a “tender offer” under Section 14(d) of the Exchange Act to purchase shares
of Class B Common Stock provided that (i) all Class B Holders (including the transferring Class B Holder) are entitled to participate
in such tender offer on a pro rata basis, and (ii) each such Class B Holder tendering shares of Class B Common Stock in such tender offer
shall (x) be entitled to receive the same consideration per share, and (y) shall be subject to the same terms and conditions in such
tender offer.
(J)
“Transfer” shall mean any conveyance, issuance, sale, transfer, gift, assignment, devise or other disposition, by any means,
of legal, record or beneficial ownership (direct or indirect) of shares of Class B Common Stock, whether such means are direct or indirect,
voluntary or involuntary, by operation of law or otherwise, or any agreement to take any such action or cause any such events, including,
without limitation, the transfer of any ownership interest in any entity that owns (directly or indirectly) Class B Common Stock, or
the transfer of, or entering into a binding agreement with respect to, Voting Control over such shares of Class B Common Stock by proxy
or otherwise shall be considered a “Transfer” of such shares; provided, however, that the following shall not be considered
a “Transfer” within the meaning of this Section 4.02(j):
(1)
a pledge of or granting of a security interest with respect to shares of Class B Common Stock (but not the voting rights attended thereto)
unless and until the record or beneficial ownership of such shares is actually transferred pursuant thereto;
(2)
the granting of a revocable proxy to officers or directors of the Corporation at the request of the Board of Directors in connection
with actions to be taken at an annual or special meeting of stockholders; or
(3)
entering into a support, voting, tender or similar agreement or arrangement (in each case, with or without the grant of a proxy) in connection
with a liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary), a merger or consolidation of the
Corporation with or into any other entity or any other transaction having an effect on stockholders substantially similar to that resulting
from a merger or consolidation, a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the
Corporation, or a transaction or series of related transactions to which the Corporation is a party in which shares of the Corporation
are transferred such that in excess of fifty percent (50%) of the Corporation’s voting power is transferred, or in connection with
consummating the actions or transactions contemplated thereby (including, without limitation, tendering or voting shares of Class B Common
Stock in connection with such a transaction, the consummation of such a transaction or the sale, assignment, transfer, conveyance, hypothecation
or other transfer or disposition of shares of Class B Common Stock or any legal or beneficial interest in shares of Class B Common Stock
in connection with such a transaction); provided that any sale, tender, assignment, transfer, conveyance, hypothecation or other transfer
or disposition of Class B Common Stock or any legal or economic interest therein pursuant to such a transaction, or any grant of a proxy
over Class B Common Stock with respect to such a transaction without specific instructions as to how to vote such Class B Common Stock,
in each case, will constitute a “Transfer” of such Class B Common Stock unless such transaction was approved by the Board
of Directors prior to the taking of such action.
(K)
“Qualifying Transferee” shall mean any Person to which a Class B Holder Transfers shares of Class B Common Stock in excess
of 25% of the total outstanding shares of Class B Common Stock in one transaction or a series of related transactions in accordance with
and pursuant to this Section 4.02(j).
(L)
“Transferee Tender Offer” shall mean, with respect to any Transfer to a Qualifying Transferee for solely non-cash consideration,
either (i) an offer by such Qualifying Transferee to purchase all shares of Class B Common Stock not owned by the transferring Class
B Holder for the same non-cash consideration per share or (ii) an offer by such Qualifying Transferee to purchase all shares of Class
B Common Stock not owned by the transferring Class B Holder at an amount per share in cash equal to the value of the non-cash consideration
to be received by the transferring Class B Holder as determined in good faith by the Board of Directors.
(M)
“Voting Control” shall mean, with respect to shares of Class B Common Stock, the power (whether exclusive or shared) to vote
or direct the voting of such shares by proxy, voting agreement or otherwise.
(k)
Repurchase Offer upon Exclusion of Class B Common Stock from Liquid Trading Market. If, as a result of any statute, law, regulation,
court order, legal process or rule or rule interpretation of a national securities exchange, the Class B Common Stock is excluded from
listing on the Nasdaq Stock Market, another national securities exchange or other liquid trading market (other than temporary events
as determined by the Board of Directors in good faith) (the date of such event, as determined by the Board of Directors in good faith,
the “Determination Date”), the Corporation shall promptly commence a voluntary offer to repurchase for cash shares of Class
B Common Stock at the Applicable VWAP. For purposes of this Section 4.02(k), “Applicable VWAP” shall mean the average of
the volume weighted average price of shares of Class A Common Stock for each of the ten (10) immediately preceding consecutive trading
days prior to the Determination Date, as displayed on Bloomberg in respect of the period from the scheduled open of trading until the
scheduled close of trading of the primary trading session on such trading day, determined without regard to after-hours trading or any
other trading outside of the regular trading session hours. Notwithstanding the foregoing, if shares of Class A Common Stock are not
currently listed on the Nasdaq Stock Market, another national securities exchange or other liquid trading market such that the Applicable
VWAP cannot be readily determined, such repurchase of shares of Class B Common Stock shall be at the fair market value as determined
by the Board of Directors in good faith.
SECTION
4.03 Preferred Stock. The Preferred Stock
may be issued at any time and from time to time in one or more series. Subject to the provisions of this Certificate of Incorporation
and applicable law, the Board of Directors is authorized to fix from time to time by resolution or resolutions the number of shares constituting
any such series of Preferred Stock and the designation thereof, and to determine (and set forth in a certificate of designation filed
pursuant to the DGCL) the powers, designations, preferences and relative, participating, optional or other special rights, if any, and
the qualifications, limitations or restrictions thereof, if any, of any wholly unissued series of Preferred Stock, including, without
limitation, dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including, without limitation,
sinking fund provisions), redemption price or prices and liquidation preferences of any such series, or any of the foregoing. Further,
the Board of Directors is authorized to increase (but not above the total number of authorized shares of the class) or decrease (but
not below the number of shares of such series then outstanding) the number of shares of any such series subsequent to the issuance of
shares of that series, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof, stated
in this Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series.
If the number of shares of any series of Preferred Stock is so decreased, then the shares constituting such decrease shall resume the
status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. The
voting powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations
or restrictions of the (a) Series A Fixed Rate Cumulative Preferred Stock are set forth in Annex A hereto and (b) Series B Cumulative
Preferred Stock are set forth in Annex B hereto, and each of them are incorporated herein by reference.
ARTICLE
V
BOARD
OF DIRECTORS
SECTION
5.01 Number. The number of directors that
shall constitute the entire Board of Directors shall be determined in the manner prescribed by the Bylaws of the Corporation (the “Bylaws”).
SECTION
5.02 Classification; Term. Subject to the
rights of holders of any series of Preferred Stock with respect to the election of directors, the directors of the Corporation shall
be divided into three classes as nearly equal in number as is practicable, hereby designated Class I, Class II and Class III. The
Board of Directors is authorized to assign members of the Board of Directors already in office to such classes. The term
of office of the initial Class I directors shall expire upon the election of directors at the first
annual meeting of stockholders following the effectiveness of this Article Vto
be held in 2021; the term of office of the initial Class II directors shall expire upon the election of directors at the second
annual meeting of stockholders following the effectiveness of this Article Vto
be held in 2022; and the term of office of the initial Class III directors shall expire upon the election of directors at
the third annual meeting of stockholders following
the effectiveness of this Article V.to be held in 2023. At each annual meeting
of stockholders, commencing with the first annual meeting of stockholders following the effectiveness
of this Article V, each of the successors elected to replace the directors of a class whose term shall have expired at
such annual meeting shall be elected to hold office until the third annual meeting next succeeding his or her election and until his
or her respective successor shall have been duly elected and qualified. Subject to the rights of holders of any outstanding series of
Preferred Stock with respect to the election of directors, if the number of directors that constitutes the Board of Directors is changed,
any newly created directorships or decrease in directorships shall be so apportioned by the Board of Directors among the classes as to
make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director. Notwithstanding the foregoing provisions of this Section 5.02, and subject
to the rights of holders of any series of Preferred Stock with respect to the election of directors, each director shall serve until
such director’s successor is duly elected and qualified or until such director’s earlier death, resignation or removal.
SECTION
5.03 Rights of Holders of Preferred Stock Relating
to Director Elections. Notwithstanding any of the other provisions of this Article V, whenever the holders of any one or more series
of Preferred Stock issued by the Corporation shall have the right, voting separately by series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed
by the terms of the certificate of designation for such series of Preferred Stock, and such directors so elected shall not be divided
into classes pursuant to this Article V unless expressly provided by such terms. During any period when the holders of any series of
Preferred Stock have the right to elect additional directors as provided for or fixed pursuant to the provisions of this Article V, then
upon commencement and for the duration of the period during which such right continues; (a) the then otherwise total authorized number
of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred
Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to such provisions, and (b) each such additional
director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s
right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to such director’s earlier
death, resignation or removal. Except as otherwise provided by the Board of Directors in the resolution or resolutions establishing such
series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right
pursuant to the provisions of such series of stock, the terms of office of all such additional directors elected by the holders of such
stock, or elected to fill any vacancies resulting from the death, resignation or removal of such additional directors, shall forthwith
terminate, and the total authorized number of directors of the Corporation shall be reduced accordingly.
SECTION
5.04 Removal. Subject to the rights of holders
of any series of Preferred Stock with respect to the election of directors, a director may be removed from office by the stockholders
of the Corporation only for cause.
SECTION
5.05 Vacancies and Newly Created
Directorships. Subject to the rights and preferences of holders of any series of outstanding Preferred Stock with respect to the
election of directors, vacancies occurring on the Board of Directors for any reason and newly created directorships resulting from
an increase in the number of directors shall, unless otherwise provided by law, be filled solely by the affirmative vote of a
majority of the remaining directors then in office, although less than a quorum, or by a sole remaining director, and shall not be
filled by any other person or persons, including stockholders. Any director so elected shall hold office for the remainder of the
full term of the class for which such director shall have been assigned by the Board of Directors or in which such vacancy occurred
and until such persons’ successor shall be duly elected and qualified. No decrease in the authorized number of directors shall
shorten the term of any incumbent director.
SECTION
5.06 Powers. Except as otherwise expressly
provided by the DGCL or this Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
SECTION
5.07 Election. The directors of the Corporation
need not be elected by written ballot unless the Bylaws so provide.
ARTICLE
VI
STOCKHOLDERS
SECTION
6.01 Special Meetings. Except as otherwise
expressly provided by the terms of any series of Preferred Stock permitting the holders of such series of Preferred Stock to call a special
meeting of the holders of such series, special meetings of the stockholders of the Corporation may be called only by the Chairman of
the Board of Directors, the Chief Executive Officer of the Corporation or the Board of Directors. The ability of the stockholders to
call a special meeting of the stockholders is hereby specifically denied.
SECTION
6.02 Advance Notice. Advance notice of stockholder
nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the
Corporation shall be given in the manner and to the extent provided in the Bylaws.
ARTICLE
VII
FORUM
FOR CERTAIN ACTIONS
Unless
a majority of the Board, acting on behalf of the Corporation, consents in writing to the selection of an alternative forum (which consent
may be given at any time, including during the pendency of litigation), the Court of Chancery of the State of Delaware (or, if the Court
of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no court located within the State
of Delaware has jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (a)
any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty
owed by any current or former director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders,
(c) any action asserting a claim against the Corporation or any of its current or former directors, officers or other employees arising
pursuant to any provision of the DGCL, this Certificate of Incorporation or the Bylaws (in each case, as may be amended from time to
time) or (d) any action asserting a claim against the Corporation or any of its current or former directors, officers or other employees
governed by the internal affairs doctrine of the State of Delaware, in all cases subject to the court’s having personal jurisdiction
over all indispensable parties named as defendants.
ARTICLE
VIII
LIMITATION
OF LIABILITY AND INDEMNIFICATION
SECTION
8.01 Limitation of Personal Liability. No
director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL, as it presently
exists or may hereafter be amended from time to time. If the DGCL is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended. No amendment to or repeal of this provision shall apply to or have any effect on the liability
or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior
to such amendment or repeal.
SECTION
8.02 Indemnification. The Corporation shall
indemnify, to the fullest extent authorized or permitted by the DGCL, as now or hereafter in effect, any director or officer of the Corporation
who was or is a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise, by reason of the fact that such person is or was a director or officer of
the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, trustee or employee of another
corporation, partnership, joint venture, trust or other enterprise, and such right to indemnification shall continue as to a person who
has ceased to be a director or officer of the Corporation and shall inure to the benefit of such person’s heirs, executors and
personal and legal representatives. The right to indemnification conferred by this Section 8.02 shall include the right to be paid by
the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition,
provided that such director or officer presents to the Corporation a written undertaking to repay such amount if it shall ultimately
be determined that such director or officer is not entitled to be indemnified by the Corporation under this Article VIII or otherwise.
Notwithstanding the foregoing, except for proceedings to enforce any director’s or officer’s rights to indemnification or
to advancement of expenses, the Corporation shall not be obligated to indemnify or advance expenses to any director or officer (or such
director’s or officer’s heirs, executors or personal or legal representatives) in connection with any proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was authorized by the Board of Directors.
SECTION
8.03 Insurance. The Corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss incurred by such person in any such capacity or arising
out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such
liability under the DGCL.
SECTION
8.04 Non-Exclusivity of Rights. The rights
and authority conferred in this Article VIII shall neither be exclusive of, nor be deemed in limitation of, any rights to which any person
may otherwise be or become entitled or permitted under this Certificate of Incorporation, the Bylaws, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION
8.05 Persons Other Than Directors and Officers.
This Article VIII shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to
advance expenses to, or to purchase and maintain insurance on behalf of, persons other than those persons described in the first sentence
of Section 8.02 of Article VIII or to advance expenses to persons other than directors and officers of the Corporation.
SECTION
8.06 Effect of Modifications. Any amendment,
repeal or modification of any provision contained in this Article VIII shall, unless otherwise required by law, be prospective only (except
to the extent such amendment or change in law permits the Corporation to further limit or eliminate the liability of directors or officers)
and shall not adversely affect any right or protection of any current or former director or officer of the Corporation existing at the
time of such amendment, repeal or modification with respect to any acts or omissions occurring prior to such amendment, repeal or modification.
ARTICLE
IX
OWNERSHIP
LIMIT
SECTION
9.01 Definitions. For purposes of this Article
IX only:
(a)
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor statute;
(b)
“Committee” shall mean a committee
established from time-to-time by the Board of Directors to administer this Article IX, comprised of at least three directors on the Board
of Directors, none of whom shall be “affiliated” (as that term is defined in Rule 12b-2 of the Exchange Act) with Fog Cutter
Capital Group, Inc.;Holdings, LLC;
(c)
“Excess Shares” means any Stock,
or any rights in Stock, the Transfer or ownership of which would result in, or increase, a Prohibited Ownership Percentage under Section
9.02;
(d)
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended from time to time, or any successor statute;
(e)
“Expiration Date” means the earlier
of (x) the repeal of Section 382 of the Code, if the Committee determines that the restrictions in this Article IX are no longer necessary
or desirable for the preservation of the Tax Benefits, or (y) such date as the Committee shall fix in accordance with Section 9.07 of
this Article IX;
(f)
“Option” shall have the meaning set
forth in Treasury Regulation Sections 1.382-4(d)(9) and 1.382-2T(h)(4)(v);
(g)
a “Person” shall mean any individual,
corporation, estate, trust (including a trust qualified under Sections 401(a) or 501(c)(17) of the Code), a portion of a trust permanently
set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within
the meaning of Section 509(a) of the Code, company, limited liability company, partnership, joint venture, or similar organization (including
the Corporation if appropriate in the context) and also includes a group as that term is used for purposes of Section 13(d)(3) of the
Exchange Act, or any other entity described in Treasury Regulation Section 1.382-3(a)(1)(i);
(h)
“Prohibited Distributions” means
any and all dividends or other distributions paid by the Corporation with respect to any Excess Shares received by a Purported Acquiror;
(i)
a “Public Group” shall have the meaning
contained in Treasury Regulation Section 1.382- 2T(f)(13);
(j) a
“Prohibited Ownership Percentage” shall mean (i) any beneficial ownership (as defined under Section 13(d) of the
Exchange Act) of five percent (5%) or more in value of the aggregate outstanding Stock, (ii) any beneficial ownership (determined
under federal income tax principles, including indirect and constructive ownership for purposes of Section 382 of the Code,
including Treasury Regulation Sections 1.382-4 and 1.382-2T(h), of five percent (5%) or more in value of the aggregate outstanding
Stock, or (iii) a “5-percent shareholder” of the Corporation within the meaning of Treasury Regulation Section
1.382-2T(g) (determined (A) without giving effect to Treasury Regulation Sections 1.382-2T(g)(2), 1.382-2T(g)(3), 1.382-2T(h)(2)(ii)
or (iii), and 1.382-2T(h)(6)(iii), (B) by treating every Person or Public Group which owns Stock, whether directly or by
attribution, as directly owning such Stock notwithstanding any further attribution of such Stock to other Persons and
notwithstanding Treasury Regulation Section 1.382-2T(h)(2)(i)(A), (C) by substituting the term “Person” or “Public
Group” in place of “individual” in Treasury Regulation Section 1.382-2T(g)(1), and (D) by treating an Option as
Stock only to the extent that treating it as Stock would cause an increase in ownership of Stock by the Transferee, Person or Public
Group under Section 9.02);
(k)
“Prohibited Person” shall mean any
Person or Public Group who has or would have, if a Transfer or purported Transfer were completed, a Prohibited Ownership Percentage;
(l)
“Purported Acquiror” shall mean any
Person or Public Group that purports to acquire record, beneficial, legal or any other ownership of Excess Shares. If there is more than
one Purported Acquiror with respect to certain Excess Shares (for example, if the Purported Acquiror of record ownership of such Excess
Shares is not the Purported Acquiror of beneficial ownership of such Excess Shares), then references to “Purported Acquiror”
shall include any or all of such Purported Acquirors, as appropriate;
(m)
“Stock” means all interests in the
Corporation that would be treated as stock in the Corporation pursuant to Treasury Regulation Section 1.382(d)(3) or 1.382-2T(f)(18);
(n) “Tax
Benefits” shall mean net operating loss carryovers (including, without limitation, any “net unrealized built-in
loss,” as defined under Code Section 382), capital loss carryovers, general business credit carryovers, alternative minimum
tax credit carryovers and other tax benefits to which the Corporation or any member of the Corporation’s “affiliated
group,” as that term is used in Section 1504 of the Code (or any similar provision of state or local law), is or becomes
entitled pursuant to the Code and the Treasury Regulations (or any similar provision of state or local law).
(o)
“Transfer” shall mean any conveyance,
issuance, sale, transfer, gift, assignment, devise or other disposition, by any means, of legal, record or beneficial ownership (direct
or indirect) of Stock, whether such means are direct or indirect, voluntary or involuntary, by operation of law or otherwise, or any
agreement to take any such action or cause any such events, including, without limitation, the transfer of any ownership interest in
any entity that owns (directly or indirectly) Stock (and any reference in this Article IX to a Transfer of Stock shall include any Transfer
of any interest in any such entity and references to the Persons to whom Stock is Transferred shall include Persons to whom any interest
in any such entity shall have been Transferred); and
(p)
“Transferee” means any Person to
whom Stock is Transferred.
(q)
“Treasury Regulations” shall mean
the regulations promulgated under the Code, including temporary regulations, as amended from time to time. In any reference in this Article
IX to Section 382 of the Code or any Treasury Regulation thereunder, the “loss corporation” shall be the Corporation, without
regard to whether or not it has any loss or other attribute.
SECTION
9.02 Transfer and Ownership Restrictions.
In order to preserve the Tax Benefits of the Corporation, from and after the effective time of this Article IX until the Expiration Date,
no Transfer of any Stock may be made to a Transferee, other than to Fog Cutter Capital Group, Inc.,Holdings,
LLC, a Delaware limited liability company, to the extent that such Transfer, if effected: (a) would cause the Transferee or
any other Person or Public Group to have a Prohibited Ownership Percentage; or (b) would increase the Prohibited Ownership Percentage
of the Transferee or any other Person or Public Group having a Prohibited Ownership Percentage.
SECTION
9.03 Waiver of Restrictions. Notwithstanding
anything herein to the contrary, the Committee may waive the application of any of the restrictions contained in Section 9.02, including,
without limitation, any Transfer of Stock that would otherwise be prohibited, in any instance in which the Committee determines that
a waiver would be in the best interests of the Corporation, notwithstanding the effect of such waiver on any Tax Benefits. The Committee
may impose any conditions that it deems reasonable and appropriate in connection with such a waiver, including without limitation, restrictions
on the ability of any Transferee to Transfer Stock acquired through a Transfer. A waiver of the Committee hereunder may be given prospectively
or retroactively.
SECTION
9.04 Purported Transfer in Violation of Transfer
Restriction. Unless a waiver of the Committee is obtained as provided in Section 9.03, any purported Transfer of Excess Shares (other
than a Transfer as provided in Section 9.04(b) or an automatic transfer as provided below) shall be null and void ab initio and
shall not be effective to Transfer any record, legal, beneficial or any other ownership of such Excess Shares to the Purported Acquiror,
who shall not be entitled to any rights as a stockholder of the Corporation with respect to such Excess Shares, and such Excess Shares
shall be automatically transferred pursuant to DGCL Section 202(c)(4) to an agent designated by the Corporation (the “Agent”).
Any future dividends or distributions payable on any Excess Shares shall be paid to the Agent until the Excess Shares are sold by it.
A Transfer that is null and void under this Section 9.04 shall not adversely affect the validity of any other Transfer of any Stock in
the same or any other related transaction.
(a)
Demand by Corporation. Unless a waiver of the Committee is obtained as provided in Section 9.03 of this Article IX, within 30
days of a determination by the Committee that there has been or is threatened a purported Transfer of Excess Shares to a Purported Acquiror,
or that a Person proposes to take any action in violation of this Article IX (whether or not such action is intentional), the Corporation
shall make a demand on the Purported Acquiror to transfer or cause the transfer of any certificate or other evidence of purported ownership
of the Excess Shares within the Purported Acquiror’s possession or control, along with the Prohibited Distributions, to the Agent.
Any failure by the Purported Acquiror to transfer or cause the transfer of any certificate or other evidence of purported ownership of
the Excess Shares to the Agent shall not negate the automatic transfer of such Excess Shares to the Agent.
(b)
Transfer of Excess Shares and Prohibited Distributions
to Agent. Upon demand by the Corporation, the Purported Acquiror shall transfer or cause the transfer of any certificate or other
evidence of purported ownership of the Excess Shares within the Purported Acquiror’s possession or control, along with the Prohibited
Distributions, to the Agent. The Agent shall sell in an arms-length transaction (through The Nasdaq Stock Market, if possible, but in
any event consistent with applicable law) any Excess Shares provided, however, that the Agent shall, in its reasonable discretion, effect
such sale or sales in an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the
Agent’s reasonable discretion, such sale or sales would disrupt the market for the Common Stock or other securities of the Corporation
or would otherwise substantially adversely affect the value of the Common Stock or such other securities. The proceeds of such sale shall
be referred to as “Sales Proceeds.” If, after purportedly acquiring the Excess Shares, the Purported Acquiror has
purported to sell some or all of them to an unrelated party in an arms-length transaction, the Purported Acquiror shall be deemed to
have sold such Excess Shares on behalf of the Agent, and in lieu of transferring the Prohibited Distributions to the Agent, the Purported
Acquiror shall transfer to the Agent the Prohibited Distributions and the proceeds of such sale (the “Resale Proceeds”),
except to the extent that the Agent grants written permission to the Purported Acquiror to retain a portion of the Resale Proceeds not
exceeding the amount that would have been payable by the Agent to the Purported Acquiror pursuant to Section 9.04(c) if the Excess Shares
had been sold by the Agent rather than by the Purported Acquiror. Any purported Transfer of the Excess Shares by the Purported Acquiror
other than a transfer which (a) is described in the preceding sentences of this Section 9.04(b) or occurs automatically to the Agent
and (b) does not itself violate the provisions of this Article IX shall be null and void ab initio and shall not be effective
to transfer any ownership of the Excess Shares.
(c) Allocation
of Sale Proceeds, Resale Proceeds and Prohibited Distributions. The Sales Proceeds, the Resale Proceeds if applicable, and
Prohibited Distributions if applicable shall be allocated as follows: (1) first to the Agent in an amount equal to the expenses
incurred in selling such Excess Shares; then (2) second, to the Purported Acquiror up to the following amount: (a) the purported
purchase price paid or value of consideration surrendered by the Purported Acquiror for the Excess Shares, or (b) where the
purported Transfer of the Excess Shares to the Purported Acquiror was by gift, inheritance, or any similar purported Transfer, the
fair market value of the Excess Shares at the time of such purported Transfer; and then (3) third any remaining amounts to an entity
designated by the Corporation that is described in Section 501(c)(3) of the Code, contributions to which must be eligible for
deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the Code. In no event shall any Excess Shares, Sales Proceeds,
Resale Proceeds or Prohibited Distributions inure to the benefit of the Corporation or the Agent, except to the extent used to cover
expenses incurred by the Agent in performing its duties hereunder.
(d)
Remedies. Without limiting any other remedies
available to the Corporation, if a Purported Acquiror shall fail to comply with Section 9.04(b) within thirty (30) days of the Corporation’s
demand, and unless a waiver of the Committee is obtained as provided in Section 9.03, the Corporation shall promptly take all cost effective
actions which it believes appropriate to compel the Purported Acquiror to surrender to the Agent the certificates representing any purported
ownership of Excess Shares, the Resale Proceeds, and/or the Prohibited Distributions or to enjoin or rescind any such purported Transfer.
The Committee may authorize such additional actions as it deems advisable to give effect to the provisions of this Article IX, including,
without limitation, refusing to give effect on the books of the Corporation to any such purported Transfer. The Corporation is authorized
specifically to seek equitable relief, including injunctive relief, to enforce or prevent a violation of the provisions of this Article
IX.
(e)
Liability. If any Person shall knowingly violate,
or knowingly cause any other Person under the control of such Person (“Controlled Person”) to violate, Section 9.02,
then that Person and any Controlled Person shall be jointly and severally liable for, and shall pay to the Corporation, such amount as
will, after taking account of all taxes imposed with respect to the receipt or accrual of such amount and all costs incurred by the Corporation
as a result of such violation, put the Corporation in the same financial position as it would have been in had such violation not occurred.
SECTION
9.05 Obligation to Provide Information. At
the request of the Corporation or as a condition to the registration of the Transfer of any Stock, any Person who is a beneficial, legal
or record holder of Stock, and any proposed Transferee and any Person controlling, controlled by or under common control with the proposed
Transferee, shall provide such information as the Corporation may request from time to time in order to determine compliance with this
Article IX or the status of the Corporation’s Tax Benefits.
SECTION
9.06 Legends. The Committee may require that
any certificates issued by the Corporation evidencing ownership of shares of Stock that are subject either to the restrictions on transfer
and ownership contained in this Article IX or to conditions imposed by the Committee under Section 9.03 bear a conspicuous legend referencing
the applicable restrictions.
SECTION
9.07 Authority of Committee. Nothing contained
in this Article IX shall limit the authority of the Committee to take such other action to the extent permitted by law as it deems necessary
or advisable to preserve the Tax Benefits. Without limiting the generality of the foregoing, in the event of a change in law (including
applicable regulations) making one or more of the following actions necessary or desirable or in the event that the Committee believes
one or more of such actions is in the best interest of the Corporation, the Committee may accelerate or extend the Expiration Date; provided
that the Committee shall determine in writing that such acceleration or extension is reasonably necessary or desirable to preserve the
Tax Benefits or that the continuation of these restrictions is no longer reasonably necessary or desirable to preserve the Tax Benefits,
as the case may be. In addition, the Committee may, to the extent permitted by law, from time to time establish, modify, amend or rescind
Bylaws, regulations and procedures of the Corporation not inconsistent with the express provisions of this Article IX for purposes of
determining whether any Transfer of Stock would jeopardize the Corporation’s ability to preserve or utilize any Tax Benefits, or
for the orderly application, administration and implementation of the provisions of this Article IX. The Committee shall have the exclusive
power and authority to administer this Article IX and to exercise all rights and powers specifically granted to the Committee, or as
may be necessary or advisable in the administration of this Article IX, including without limitation, the right and power to (1) interpret
the provisions of this Article IX, (2) make all calculations and determinations deemed necessary or advisable for the administration
of this Article IX and (3) determine value in good faith, which determination shall be conclusive. In the case of an ambiguity in the
application of any of the provisions of this Article IX, including any definition used herein, the Committee shall have the power to
determine the application of such provisions with respect to any situation based on its reasonable belief, understanding or knowledge
of the circumstances. In the event this Article IX requires an action by the Committee but fails to provide specific guidance with respect
to such action, the Committee shall have the power to determine the action to be taken so long as such action is not contrary to the
provisions of this Article IX. All such actions, calculations, interpretations and determinations which are done or made by the Committee
in good faith shall be final, conclusive and binding on the Corporation, the Agent, and all other parties.
SECTION
9.08 Benefits of this Article IX. Nothing
in this Article IX shall be construed to give to any Person other than the Corporation or the Agent any legal or equitable right, remedy
or claim under this Article IX. This Article IX shall be for the sole and exclusive benefit of the Corporation and the Agent.
SECTION
9.09 Severability. If any provision of this
Article IX or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal, or unenforceable
in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
of this Article IX.
SECTION
9.10 Waiver. With regard to any power, remedy
or right provided herein or otherwise available to the Corporation or the Agent under this Article IX, (i) no waiver will be effective
unless expressly contained in a writing signed by the waiving party; and (ii) no alteration, modification or impairment will be implied
by reason of any previous waiver, extension of time, delay or omission in exercise, or other indulgence.
ARTICLE
X
AMENDMENT
SECTION
10.01 Amendment of Certificate of Incorporation.
The Corporation reserves the right to amend, alter or repeal any provision contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by this Certificate of Incorporation and the DGCL, and all rights, preferences and privileges herein conferred
upon stockholders of the Corporation by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended
are granted subject to the right reserved in this Section 10.01. In addition to any other vote that may be required by law,
this Certificate of Incorporation, applicable stock exchange rule or the terms of any series of Preferred Stock, the affirmative
vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal or adopt
any provision of this Certificate of Incorporation. Notwithstanding any other provision of this Certificate of Incorporation, and in
addition to any other vote that may be required by law, applicable stock exchange rule or the terms of any series of Preferred Stock,
the affirmative vote of the holders of at least 75% of the voting power of all then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal
or adopt any provision of this Certificate of Incorporation inconsistent with the purpose and intent of Article V, Article VI, Article
VII, Article VIII, Article IX or this Article X (including, without limitation, any such Article as renumbered as a result of any amendment,
alteration, repeal or adoption of any other Article).
SECTION
10.02 Amendment of Bylaws. In furtherance
and not in limitation of the powers conferred by the DGCL, the Board of Directors is expressly authorized to adopt, amend, alter or repeal
the Bylaws. The Bylaws may also be adopted, amended, altered or repealed by the stockholders of the Corporation by the affirmative vote
of the holders of at least 75% of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
ARTICLE
XI
SECTION
203
The
Corporation expressly elects not to be governed by Section 203 of the DGCL, and the restrictions contained in Section 203 of the DGCL
shall not apply to the Corporation.
*
* * * *
ANNEX
A
CERTIFICATE
OF DESIGNATION OF RIGHTS AND PREFERENCES
SERIES
A FIXED RATE CUMULATIVE PREFERRED STOCK
Section
1. Number of Shares and Designation. This series of Preferred Stock shall be designated as Series A Fixed Rate Cumulative
Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”), and the number of shares that
shall constitute such series shall be 100,000.
Section
2. Definitions. For purposes of the Series A Preferred Stock and as used in this Certificate, the following terms shall
have the meanings indicated:
“Business
Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions
in New York, New York are not required to be open.
“Call
Date” shall mean the date fixed for redemption of the Series A Preferred Stock and specified in the notice to holders
required under paragraph (f) of Section 5 hereof as the Call Date.
“Certificate”
shall mean this Certificate of Designation of Rights and Preferences of the Series A Preferred Stock.
“Change
of Control” shall mean when, after the original issuance of the Series A Preferred Stock, any of the following has
occurred and is continuing: (i) any sale, lease, or transfer, exclusive license or other dispositions (or series of sales, leases, transfers,
exclusive licenses or other dispositions) of all or substantially all of the assets of the Corporation and its subsidiaries; (ii) any
sale, transfer or issuance (or series of sales, transfers or issuances) of capital stock by the Corporation or the holders of Common
Shares (or other Voting Stock of the Corporation) that results in the inability of the holders of Common Shares (or other Voting Stock
of the Corporation) immediately prior to such sale, transfer or issuance to designate or elect a majority of the board of directors (or
its equivalent) of the Corporation; or (iii) any merger, consolidation, recapitalization or reorganization of the Corporation with or
into another Person (whether or not the Corporation is the surviving corporation) that results in the inability of the beneficial holders
of Common Shares (or other Voting Stock of the Corporation) immediately prior to such merger, consolidation, recapitalization or reorganization
to designate or elect a majority of the board of directors (or its equivalent) of the resulting entity or its parent company.
“Common
Shares” shall mean the shares of common stock, $0.0001 par value, of the Corporation.
“Dividend
Default” shall have the meaning set forth in subparagraph (b)(i) of Section 3 hereof.
“Dividend
Payment Date” shall have the meaning set forth in subparagraph (a)(i) of Section 3 hereof.
“Dividend
Periods” shall mean quarterly dividend periods commencing on the first day of each of January, April, July and October
and ending on and including the day preceding the first day of the next succeeding Dividend Period; provided, however, that any Dividend
Period during which any Series A Preferred Stock shall be redeemed pursuant to Section 5 hereof shall end on but shall not include the
Call Date only with respect to the Series A Preferred Stock being redeemed.
“Dividend
Rate” shall mean 9.9% per annum.
“Dividend
Record Date” shall have the meaning set forth in subparagraph (a)(i) of Section 3 hereof.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended.
“FAT
Board” shall mean the board of directors of the Corporation or any committee of members of the board of directors
authorized by such board to perform any of its responsibilities with respect to the Series A Preferred Stock.
“Issue
Date” shall mean the original date of issuance of Series A Preferred Stock, or June 8, 2018.
“Junior
Shares” shall have the meaning set forth in paragraph (a)(iii) of Section 7 hereof.
“Mandatory
Redemption Date” shall have the meaning set forth in paragraph (c) of Section 5 hereof.
“Parity
Shares” shall have the meaning set forth in paragraph (b) of Section 7 hereof.
“Penalty
Rate” shall mean the Dividend Rate then in effect plus 1.0% per annum.
“Person”
shall mean any individual, firm, partnership, limited liability company, corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
A
“Quarterly Dividend Default” shall occur if the Corporation fails to pay dividends on the Series A Preferred
Stock provided for in Section 3(a)(i) in full for any Dividend Period.
“SEC”
shall have the meaning set forth in Section 9 hereof.
“Securities
Act” shall mean the U.S. Securities Act of 1933, as amended.
“Senior
Shares” shall have the meaning set forth in paragraph (a) of Section 7 hereof.
“Series
A Preferred Stock” shall have the meaning set forth in Section 1 hereof.
“set
apart for payment” shall be deemed to include, without any further action, the following: the recording by the Corporation
in its accounting ledgers of any accounting or bookkeeping entry that indicates, pursuant to an authorization by the FAT Board and a
declaration of dividends or other distribution by the Corporation, the initial and continued allocation of funds to be so paid on any
series or class of shares of stock of the Corporation; provided, however, that if any funds for any class or series of Junior Shares
or any class or series of Parity Shares are placed in a separate account of the Corporation or delivered to a disbursing, paying or other
similar agent, then “set apart for payment” with respect to the Series A Preferred Stock shall mean irrevocably placing such
funds in a separate account or irrevocably delivering such funds to a disbursing, paying or other similar agent.
“Transfer
Agent” means VStock Transfer, LLC, or such other agent or agents of the Corporation as may be designated by the
FAT Board or its duly authorized designee as the transfer agent, registrar and dividend disbursing agent for the Series A Preferred Stock.
“Voting
Stock” shall mean stock of any class or kind having the power to vote generally for the election of directors.
Section
3. Dividends.
(a)(i)
Holders of Series A Preferred Stock shall be entitled to receive, when, as and if declared by the FAT Board or a duly authorized committee
thereof, in its sole discretion, out of funds of the Corporation legally available for the payment of distributions, cumulative preferential
cash dividends at a rate per annum equal to the Dividend Rate multiplied by $100.00 per share stated liquidation preference of the Series
A Preferred Stock (subject to adjustment as set forth in paragraphs (b) and (c) of this Section 3). Such dividends shall accrue without
interest and accumulate, whether or not earned or declared, on each issued and outstanding share of the Series A Preferred Stock from
(and including) the original date of issuance of such share and shall be payable quarterly in arrears on the last calendar day of each
Dividend Period (each such day being hereinafter called a “Dividend Payment Date”); provided, that (i) Series
A Preferred Stock issued during any Dividend Period after the Dividend Record Date for such Dividend Period shall only begin to accrue
dividends on the first day of the next Dividend Period; and provided, further, that (ii) if any Dividend Payment Date is not a Business
Day, then the dividend that would otherwise have been payable on such Dividend Payment Date (if declared) may be paid on the next succeeding
Business Day with the same force and effect as if paid on such Dividend Payment Date, and no interest or additional dividends or other
sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business Day. Any dividend payable
on the Series A Preferred Stock for any partial Dividend Period shall be prorated and computed on the basis of a 360- day year consisting
of twelve 30-day months. Dividends shall be payable to holders of record as they appear in the stock records of the Corporation at the
close of business on the applicable record date, which shall be the fifteenth day of the month in which the applicable Dividend Payment
Date occurs, or such other date designated by the FAT Board or an officer of the Corporation duly authorized by the FAT Board for the
payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (each such date, a “Dividend
Record Date”).
(ii)
In addition to the dividends provided in Section 3(a)(i) above, holders of Series A Preferred Stock shall be entitled to receive additional
cumulative dividends equal to 4.0% multiplied by $100.00 per share stated liquidation preference of the Series A Preferred Stock. Such
dividends shall accrue and accumulate without interest on each issued and outstanding share of Series A Preferred Stock from (and including)
the original date of issuance of such share and shall be payable on the Mandatory Redemption Date to holders of record in the stock records
of the Corporation on the Mandatory Redemption Date, after which time the additional dividends provided in this subparagraph (a)(ii)
shall terminate.
(b)
Upon the occurrence of four accumulated, accrued and unpaid Quarterly Dividend Defaults, whether consecutive or non-consecutive (a “Dividend
Default”), then:
(i)
the Dividend Rate shall increase to the Penalty Rate, commencing on the first day after the Dividend Payment Date on which a Dividend
Default occurs and for each subsequent Dividend Payment Date thereafter until such time as the Corporation has paid all accumulated accrued
and unpaid dividends on the Series A Preferred Stock in full and has paid accrued dividends for all Dividend Periods during the two most
recently completed Quarterly Dividend Periods in full, at which time the Dividend Rate shall be reinstated; and
(ii)
when the Dividend Default is cured and the Dividend Rate is reinstated, a second Dividend Default shall not occur until the Corporation
has an additional four accumulated, accrued and unpaid Quarterly Dividend Defaults, whether consecutive or non-consecutive after the
initial default is cured.
(c)
No dividend on the Series A Preferred Stock will be declared by the Corporation or paid or set apart for payment by the Corporation at
such time as the terms and provisions of Senior Shares or any agreement of the Corporation, including any agreement relating to its indebtedness,
prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment
would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or
prohibited under the DGCL or other applicable law; provided, however, notwithstanding anything to the contrary contained herein, dividends
on the Series A Preferred Stock shall continue to accrue without interest and accumulate regardless of whether: (i) any or all of the
foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the payment of
such dividends; or (iv) such dividends are authorized by the FAT Board. Accrued and unpaid dividends on the Series A Preferred Stock
will accumulate as of the Dividend Payment Date on which they first become payable or on the date of redemption of the Series A Preferred
Stock, as the case may be.
(d)
Except as provided in the next sentence, if any Series A Preferred Stock is outstanding, no dividends will be declared or paid or set
apart for payment on any Parity Shares or Junior Shares, unless all accumulated accrued and unpaid dividends are contemporaneously declared
and paid in cash or declared and a sum of cash sufficient for the payment thereof set apart for such payment on the Series A Preferred
Stock for all past Dividend Periods with respect to which full dividends were not paid on the Series A Preferred Stock in cash. When
dividends are not paid in full (or a sum sufficient for such full payment is not so set apart for payment) upon the Series A Preferred
Stock and upon all Parity Shares, all dividends declared, paid or set apart for payment upon the Series A Preferred Stock and all such
Parity Shares shall be declared and paid pro rata or declared and set apart for payment pro rata so that the amount of dividends declared
per share of Series A Preferred Stock and per share of such Parity Shares shall in all cases bear to each other the same ratio that accumulated
dividends per share of Series A Preferred Stock and such other Parity Shares (which shall not include any accumulation in respect of
unpaid dividends for prior dividend periods if such other Parity Shares do not bear cumulative dividends) bear to each other. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series A Preferred Stock which
may be in arrears, whether at the Dividend Rate or at the Penalty Rate.
(e)
Except as provided in paragraph (d) of this Section 3, unless all accumulated accrued and unpaid dividends on the Series A Preferred
Stock are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof is set apart for
payment for all past Dividend Periods with respect to which full dividends were not paid on the Series A Preferred Stock, no dividends
(other than payable in shares of Common Stock or Junior Shares ranking junior to the Series A Preferred Stock as to dividends and upon
liquidation) may be declared or paid or set apart for payment upon the Common Stock or any Junior Shares or Parity Shares, nor shall
any Common Stock or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration
(or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation (except by conversion
into or exchange for Junior Shares or by redemption, purchase or acquisition of stock under any employee benefit plan of the Corporation).
(f)
Holders of Series A Preferred Stock shall not be entitled to any dividend in excess of all accumulated accrued and unpaid dividends on
the Series A Preferred Stock as described in this Section 3. Any dividend payment made on the Series A Preferred Stock shall first be
credited against the earliest accumulated accrued and unpaid dividend due with respect to such shares which remains payable at the time
of such payment.
Section
4. Liquidation Preference.
(a)
Subject to the rights of the holders of Senior Shares and Parity Shares, in the event of any liquidation, dissolution, winding up or
Change of Control of the Corporation, whether voluntary or involuntary, before any payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for the holders of Junior Shares as to the distribution of assets on any liquidation,
dissolution, winding up or Change of Control of the Corporation, each holder of the Series A Preferred Stock shall be entitled to receive
an amount of cash equal to $100.00 per share of Series A Preferred Stock plus an amount in cash equal to all accumulated accrued and
unpaid dividends thereon (whether or not earned or declared) to the date of final distribution to such holders. If, upon any liquidation,
dissolution, winding up or Change of Control of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among
the holders of the Series A Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments
on any other shares of any class or series of Parity Shares as to the distribution of assets on any liquidation, dissolution, winding
up or Change of Control of the Corporation, then such assets, or the proceeds thereof, shall be distributed among the holders of Series
A Preferred Stock and any such other Parity Shares ratably in accordance with the respective amounts that would be payable on such Series
A Preferred Stock and any such other Parity Shares if all amounts payable thereon were paid in full.
(b)
Written notice of any such liquidation, dissolution, winding up or Change of Control of the Corporation, stating the payment date or
dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first
class mail, postage pre-paid, not less than 20 nor more than 60 days prior to the payment date stated therein, to each record holder
of Series A Preferred Stock at the respective address of such holders as the same shall appear on the stock transfer records of the Corporation.
Subject
to the rights of the holders of Senior Shares and Parity Shares upon liquidation, dissolution, winding up or Change of Control, upon
any liquidation, dissolution, winding up or Change of Control of the Corporation, after payment shall have been made in full to the holders
of the Series A Preferred Stock, as provided in this Section 4, any other series or class or classes of Junior Shares shall, subject
to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series A Preferred Stock shall not be entitled to share therein.
Section
5. Redemption.
(a)
Optional Redemption at Election of Corporation. The Corporation may redeem the Series A Preferred Stock, in whole at any time
or from time to time in part, at the option of the Corporation, for cash, at the following redemption price per share of Series A Preferred
Stock, plus the amounts indicated in paragraph (d) of this Section 5:
(i)
On or prior to June 30, 2021: $115.00 per share.
(ii)
After June 30, 2021 and on or prior to June 30, 2022: $110.00 per share.
(iii)
After June 30, 2022: $100.00 per share.
If
fewer than all of the outstanding shares of Series A Preferred Stock are to be redeemed pursuant to the Corporation’s exercise
of its redemption right under this paragraph (a), the shares to be redeemed shall be selected pro rata (as nearly as practicable without
creating fractional shares) or by lot or in such other equitable method prescribed by the Corporation.
(b)
Optional Redemption at Election of Holder.
(i)
Holders of record of Series A Preferred Stock may elect to cause the Corporation to redeem all or any portion of their shares of Series
A Preferred Stock for cash beginning any time after the two-year anniversary of the Issue Date, or June 8, 2020, for an amount equal
to $100.00 per share plus the amounts indicated in paragraph (d) of this Section 5, which amount may be settled in cash or Common Shares,
at the option of the Holder. If the holder elects settlement in Common Shares, settlement shall be at the volume weighted average price
of the Common Shares for the twenty (20) trading days immediately preceding the date of such holder’s notice to the Corporation
electing redemption. A holder making such election shall provide written notice thereof to the Corporation specifying the name and address
of the holder, the number of shares of Series A Preferred Stock to be redeemed and whether settlement shall be in cash or Common Shares.
The Corporation shall redeem the specified shares at a time that is not more than 120 days following receipt of such notice. The Corporation
may require the surrender and endorsement of the physical share certificates representing the redeemed shares upon payment of the redemption
price.
(ii)
Until the Corporation obtains approval to waive this Section 5(b)(ii) by the requisite number of its stockholders at a duly called special
or annual meeting of stockholders, the Corporation shall not deliver Common Shares in settlement of a holder’s redemption right
under Section 5(b)(i) hereof, and a holder of Series A Preferred Stock shall not have the right to elect delivery of Common Shares under
Section 5(b)(i), to the extent that (A) the aggregate Common Shares issued by the Corporation to all holders pursuant to Section 5(b)(i)
plus (B) the aggregate Common Shares issued or issuable by the Corporation pursuant to the exercise of warrants issued by the Corporation
under that certain Subscription Agreement, dated June [●], 2018, or Registration Rights Agreement, dated June [●], 2018,
would exceed 19.99% of the Common Shares issued and outstanding on the date of this Certificate, subject to pro rata adjustment in connection
with any stock splits, stock dividends, or similar changes to the Corporation’s capitalization occurring after the date of this
Certificate.
(c)
Mandatory Redemption. Unless the Series A Preferred Stock shall have been redeemed pursuant to paragraph (a) or paragraph (b)
of this Section 5, the Series A Preferred Stock shall be subject to mandatory redemption by the Corporation for an amount equal to $100.00
per share plus the amounts indicated in paragraph (d) of this Section 5 upon the occurrence of the first to occur of the following: (i)
the date which is the five-year anniversary of the Issue Date, or June 8, 2023 (the “Mandatory Redemption Date”),
or (ii) the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary.
(d)
Unpaid Dividends. Upon any redemption of Series A Preferred Stock pursuant to this Section 5, the Corporation shall, subject to
the next sentence, pay any accumulated accrued and unpaid dividends in arrears for any Dividend Period ending on or prior to the Call
Date. If the Call Date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, then each holder of Series
A Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided
above, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on Series A Preferred Stock
called for redemption.
(e)
Additional Limitation on Redemption. If all accumulated accrued and unpaid dividends on the Series A Preferred Stock and any other
class or series of Parity Shares of the Corporation have not been paid in cash (or, with respect to any Parity Shares, in Parity Shares),
declared and set apart for payment in cash (or, with respect to any Parity Shares, in Parity Shares), then the Corporation shall not
redeem, purchase or acquire any shares of Series A Preferred Stock or Parity Shares, otherwise than (i) pursuant to a purchase or exchange
offer made on the same terms to all holders of Series A Preferred Stock and Parity Shares, (ii) in exchange for Junior Shares, (iii)
pursuant to paragraph (b) of this Section 5; provided that the holders of not less than 75% of the outstanding shares of Series A preferred
Stock have elected to redeem such shares, or (iv) pursuant to paragraph (c) of this Section 5.
(f)
Redemption Procedures. Notice of the redemption of any Series A Preferred Stock under paragraph (a) or (c) of this Section 5 shall
be mailed by first class mail to each holder of record of Series A Preferred Stock to be redeemed at the address of each such holder
as shown on the Corporation’s records, not less than 20 nor more than 60 days prior to the Call Date. Neither the failure to mail
any notice required by this paragraph (f), nor any defect therein or in the mailing thereof, to any particular holder, shall affect the
sufficiency of the notice or the validity of the proceedings for redemption with respect to the other holders. Any notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given on the date mailed whether or not the holder receives the
notice. Each such mailed notice shall state, as appropriate: (1) the Call Date; (2) the number of shares of Series A Preferred Stock
to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price per share of Series A Preferred Stock (determined as set forth in paragraph (a) or paragraph (c)
of this Section 5, as applicable) plus accumulated accrued and unpaid dividends through the Call Date (determined as set forth in paragraph
(d) of this Section 5); (4) if any shares are represented by certificates, the place or places at which certificates for such shares
are to be surrendered; (5) that dividends on the shares to be redeemed shall cease to accrue on such Call Date except as otherwise provided
herein; and (6) any other information required by law or by the applicable rules of any exchange or national securities market upon which
the Series A Preferred Stock may be listed or admitted for trading. Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash necessary to effect such redemption), (i) except as otherwise
provided herein, dividends on the Series A Preferred Stock so called for redemption shall cease to accrue, (ii) said shares shall no
longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Series A Preferred Stock shall cease (except
the right to receive cash payable upon such redemption, without interest thereon, upon surrender and endorsement of their certificates
if so required and to receive any dividends payable thereon).
(g)
Set Asides. The Corporation’s obligation to provide cash in accordance with the preceding subsection shall be deemed fulfilled
if, on or before the Call Date, the Corporation shall irrevocably deposit funds necessary for such redemption, in trust, with a bank
or trust company that has, or is an affiliate of a bank or trust company that has, capital and surplus of at least $50 million, with
irrevocable instructions that such cash be applied to the redemption of the Series A Preferred Stock so called for redemption, in which
case the notice to holders of the Series A Preferred Stock will (i) state the date of such deposit, (ii) specify the office of such bank
or trust company as the place of payment of the redemption price and (iii) require such holders to surrender the certificates, if any,
representing such shares at such place on or about the date fixed in such redemption notice (which may not be later than the Call Date)
against payment of the redemption price (including all accumulated accrued and unpaid dividends to the Call Date, determined as set forth
in paragraph (d) of this Section 5). No interest shall accrue for the benefit of the holders of Series A Preferred Stock to be redeemed
on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of six months from
the Call Date shall revert to the general funds of the Corporation after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Corporation for the payment of such cash.
Section
6. Status of Acquired Shares. All shares of Series A Preferred Stock issued and redeemed by the Corporation in accordance
with Section 5 hereof, or otherwise acquired by the Corporation, shall be restored to the status of authorized but unissued shares of
undesignated Preferred Stock of the Corporation.
Section
7. Ranking. Any class or series of shares of stock of the Corporation shall be deemed to rank:
(a)
prior to the Series A Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if the holders of such class or series shall be entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution, winding up or Change of Control, as the case may be, in preference or priority to the holders of Series
A Preferred Stock (“Senior Shares”);
(b)
on a parity with the Series A Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share
thereof be different from those of the Series A Preferred Stock, if the holders of such class or series and the Series A Preferred Stock
shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution, winding up or Change of Control
in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or
priority one over the other (“Parity Shares”); and
(c)
junior to the Series A Preferred Stock, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if such class or series shall be the Common Shares or any other class or series of shares of stock of
the Corporation now or hereafter issued and outstanding over which the Series A Preferred Stock have preference or priority in the payment
of dividends and in the distribution of assets upon any liquidation, dissolution, winding up or Change of Control of the Corporation
(“Junior Shares”).
Section
8. Voting Rights.
(a)
So long as any shares of Series A Preferred Stock are outstanding, the affirmative vote of the holders of more than fifty percent (50%)
of the Series A Preferred Stock then outstanding, given in person or by proxy, either in writing without a meeting or by vote at any
meeting called for the purpose, shall be necessary for effecting or validating:
(i)
Any amendment, alteration or repeal of any provisions of the Certificate of Incorporation or this Certificate that adversely affects
the rights, preferences or voting power of the Series A Preferred Stock; provided, however, that the amendment of the Certificate of
Incorporation to authorize or create, or to increase the authorized amount of, the Series A Preferred Stock, any Parity Shares or any
Junior Shares shall not be deemed to materially or adversely affect the rights, preferences or voting power of the Series A Preferred
Stock;
(ii)
A statutory share exchange, consolidation with or merger of the Corporation with or into another entity or consolidation of the Corporation
with or merger of another entity into the Corporation, that in each case adversely affects the rights, preferences or voting power of
the Series A Preferred Stock, unless in such case each share of Series A Preferred Stock shall be converted into or exchanged for an
amount of cash equal to or greater than the applicable redemption price called for under Section 5 hereof at the time of such conversion
or exchange or preferred shares of the surviving entity having preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or distributions, qualifications and terms or conditions of redemption thereof that are substantially the
same as that of a share of Series A Preferred Stock;
(iii)
The authorization, reclassification or creation of, or the increase in the authorized amount of, any Senior Shares; or
(iv)
Approving any waiver or amendment of the restrictions set forth in paragraphs (d) or (e) of Section 3 hereof; provided, however,
that no such vote of the holders of Series A Preferred Stock shall be required if, at or prior to the time when any of the above actions
is to take effect, a deposit is made for the redemption in cash of all shares of Series A Preferred Stock at the time outstanding, as
provided in paragraph (f) of Section 5 hereof, for a redemption price called for under Section 5 at the time of such redemption.
(b)
For purposes of paragraph (a) of this Section 8, each share of Series A Preferred Stock shall have one vote per share. Except as required
by applicable provisions of the DGCL, the Series A Preferred Stock shall not have any relative, participating, optional or other special
voting rights and powers other than as set forth herein, and the consent of the holders thereof shall not be required for the taking
of any corporate action. No amendment to these terms of the Series A Preferred Stock shall require the vote of the holders of Common
Shares (except as required by law) or any other series of Preferred Stock.
Section
9. Information Rights. During any period in which the Corporation is not subject to Section 13 or 15(d) of the Exchange
Act and any shares of Series A Preferred Stock are outstanding, the Corporation shall (a) transmit by mail to all holders of Series A
Preferred Stock, as their names and addresses appear in the Corporation’s record books and without cost to such holders, copies
of the annual reports and quarterly reports that the Corporation would have been required to file with the Securities and Exchange Commission
(the “SEC”) pursuant to Section 13 or 15(d) of the Exchange Act if the Corporation was subject to such sections
(other than any exhibits that would have been required); and (b) promptly upon written request, supply copies of such reports to any
prospective holder of Series A Preferred Stock. The Corporation shall mail the reports to the holders of Series A Preferred Stock within
15 days after the respective dates by which the Corporation would have been required to file the reports with the SEC if the Corporation
were then subject to Section 13 or 15(d) of the Exchange Act, assuming the Corporation is a “non- accelerated filer”
in accordance with the Exchange Act.
Section
10. Record Holders. The Corporation and the Transfer Agent shall deem and treat the record holder of any shares of Series
A Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be
affected by any notice to the contrary.
Section
11. Sinking Fund. The Series A Preferred Stock shall not be entitled to the benefits of any retirement or sinking fund.
Section
12. No Conversion Right. Except as set forth in paragraph (b) of Section 5, the shares of Series A Preferred Stock are
not convertible into or exchangeable for any other property or securities of the Corporation.
Section
13. Uncertificated Book-Entry Securities. The Series A Preferred Stock shall be issued as book- entry securities directly
registered in the stockholder’s name on the Corporation’s books and records. The Series A Preferred Stock shall not be represented
by certificates but instead shall be uncertificated securities of the Corporation.
ANNEX
B
AMENDED
AND RESTATED
CERTIFICATE
OF DESIGNATION OF RIGHTS AND PREFERENCES
SERIES
B CUMULATIVE PREFERRED STOCK
Section
1. Number of Shares and Designation. This series of Preferred Stock shall be designated as Series B Cumulative Preferred
Stock, par value $0.0001 per share (the “Series B Preferred Stock”), and the number of shares that shall constitute
such series shall be 4,900,000.
Section
2. Definitions. For purposes of the Series B Preferred Stock and as used in this Certificate, the following terms shall
have the meanings indicated:
“Business
Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions
in New York, New York are not required to be open.
“Call
Date” shall have the meaning set forth in paragraph (c) of Section 5 hereof.
“Certificate”
shall mean this Certificate of Designation of Rights and Preferences of the Series B Preferred
Stock.
“Change
of Control” shall mean when, after the original issuance of the Series B Preferred Stock, any of the following has
occurred and is continuing: (i) any sale, lease, or transfer, exclusive license or other dispositions (or series of sales, leases, transfers,
exclusive licenses or other dispositions) of all or substantially all of the assets of the Corporation and its subsidiaries; (ii) any
sale, transfer or issuance (or series of sales, transfers or issuances) of capital stock by the Corporation or the holders of Common
Shares (or other Voting Stock of the Corporation) that results in the inability of the record holders of Common Shares (or other Voting
Stock of the Corporation) immediately prior to such sale, transfer or issuance to designate or elect a majority of the board of directors
(or its equivalent) of the Corporation; or (iii) any merger, consolidation, recapitalization or reorganization of the Corporation with
or into another Person (whether or not the Corporation is the surviving corporation) that results in the inability of the record holders
of Common Shares (or other Voting Stock of the Corporation) immediately prior to such merger, consolidation, recapitalization or reorganization
to designate or elect a majority of the FAT Board; provided, that a Change of Control shall not include a change in the record holders
of Common Shares (or other Voting Stock of the Corporation) resulting from a distribution or issuance of Common Shares (or other Voting
Stock of the Corporation) to any of the record or beneficial stockholders of Fog Cutter Capital Group, Inc. (“FCCG”),
whether upon dissolution, liquidation or reorganization of FCCG or its entity stockholders, or upon a merger, acquisition or other business
combination transaction involving FCCG and the Corporation and/or its subsidiaries.
“Common
Shares” shall mean the shares of common stock, $0.0001 par value, of the Corporation, and shares of any other class
of securities into which such securities may hereafter be reclassified or exchanged.
“Dividend
Payment Date” shall have the meaning set forth in paragraph (a) of Section 3 hereof.
“Dividend
Period” shall mean each calendar monthly periods commencing on the first day of each calendar month and ending on
and including the last day of each calendar month; provided, however, that any Dividend Period during which any Series B Preferred Stock
shall be redeemed pursuant to Section 5 hereof shall end on but shall not include the Call Date only with respect to the Series B Preferred
Stock being redeemed.
“Dividend
Rate” shall mean 8.25% per annum.
“Dividend
Record Date” shall have the meaning set forth in paragraph (a) of Section 3 hereof.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended.
“FAT
Board” shall mean the board of directors of the Corporation or any committee of members of the board of directors
authorized by such board to perform any of its responsibilities with respect to the Series B Preferred Stock.
“Issue
Date” shall mean the original date of issuance of Series B Preferred Stock, or July 16, 2020.
“Junior
Shares” shall have the meaning set forth in subparagraph (a)(iii) of Section 7 hereof.
“Nonpayment
Event” shall have the meaning set forth in subparagraph (b)(i) of Section 8 hereof.
“Parity
Shares” shall have the meaning set forth in subparagraph (a)(ii) of Section 7 hereof.
“Penalty
Event” shall have the meaning set forth in paragraph (b) of Section 3 hereof.
“Penalty
Rate” shall mean 10.0% per annum.
“Person”
shall mean any individual, firm, partnership, limited liability company, corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
“SEC”
shall have the meaning set forth in Section 9 hereof.
“Securities
Act” shall mean the U.S. Securities Act of 1933, as amended.
“Senior
Shares” shall have the meaning set forth in subparagraph (a)(i) of Section 7 hereof.
“Series
B Preferred Stock” shall have the meaning set forth in Section 1 hereof.
“set
apart for payment” shall be deemed to include, without any further action, the following: the recording by the Corporation
in its accounting ledgers of any accounting or bookkeeping entry that indicates, pursuant to an authorization by the FAT Board and a
declaration of dividends or other distribution by the Corporation, the initial and continued allocation of funds to be so paid on any
series or class of shares of stock of the Corporation; provided, however, that if any funds for any class or series of Junior Shares
or any class or series of Parity Shares are placed in a separate account of the Corporation or delivered to a disbursing, paying or other
similar agent, then “set apart for payment” with respect to the Series B Preferred Stock shall mean irrevocably placing such
funds in a separate account or irrevocably delivering such funds to a disbursing, paying or other similar agent.
“Transfer
Agent” means VStock Transfer, LLC, or such other agent or agents of the Corporation as may be designated by the
FAT Board or its duly authorized designee as the transfer agent, registrar and dividend disbursing agent for the Series B Preferred Stock.
“Voting
Stock” shall mean stock of any class or kind having the power to vote generally for the election of directors.
Section
3. Dividends.
(a)
Holders of Series B Preferred Stock shall be entitled to receive, when, as and if declared by the FAT Board or a duly authorized committee
thereof, in its sole discretion, out of funds of the Corporation legally available for the payment of distributions, cumulative preferential
cash dividends at a rate per annum equal to the Dividend Rate multiplied by $25.00 per share stated liquidation preference of the Series
B Preferred Stock (subject to adjustment as set forth in paragraphs (b) and (c) of this Section 3). Such dividends shall accrue without
interest and accumulate, whether or not earned or declared, on each issued and outstanding share of the Series B Preferred Stock from
(and including) the original date of issuance of such share and shall be payable monthly in arrears on a date selected by the Corporation
each calendar month that is no later than twenty (20) days following the end of each calendar month (each such day being hereinafter
called a “Dividend Payment Date”); provided, that (i) Series B Preferred Stock issued during any Dividend Period
after the Dividend Record Date for such Dividend Period shall only begin to accrue dividends on the first day of the next Dividend Period;
and provided, further, that (ii) if any Dividend Payment Date is not a Business Day, then the dividend that would otherwise have been
payable on such Dividend Payment Date (if declared) may be paid on the next succeeding Business Day with the same force and effect as
if paid on such Dividend Payment Date, and no interest or additional dividends or other sums shall accrue on the amount so payable from
such Dividend Payment Date to such next succeeding Business Day. Any dividend payable on the Series B Preferred Stock for any partial
Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends shall be
payable to holders of record as they appear in the stock records of the Corporation at the close of business on the applicable record
date, which shall be the fifteenth day of the month in which the applicable Dividend Payment Date occurs, or such other date designated
by the FAT Board or an officer of the Corporation duly authorized by the FAT Board for the payment of dividends that is not more than
30 nor less than ten days prior to such Dividend Payment Date (each such date, a “Dividend Record Date”).
(b)
If the Corporation fails to pay dividends on the Series B Preferred Stock provided for in paragraph (a) of this Section 3 in full for
any twelve (12) accumulated, accrued and unpaid Dividend Periods, whether consecutive or non-consecutive (a “Penalty Event”),
then:
(i)
the Dividend Rate shall increase to the Penalty Rate, commencing on the first day after the Dividend Payment Date on which a Penalty
Event occurs and for each subsequent Dividend Payment Date thereafter until such time as the Corporation has paid all accumulated accrued
and unpaid dividends on the Series B Preferred Stock in full and has paid accrued dividends for all Dividend Periods during the two most
recently completed Dividend Periods in full, at which time the Dividend Rate shall be reinstated; and
(ii)
when the Penalty Event is cured and the Dividend Rate is reinstated, another Penalty Event shall not occur until the Corporation fails
to pay dividends on the Series B Preferred Stock for an additional twelve (12) accumulated, accrued and unpaid Dividend Periods, whether
consecutive or non-consecutive after the prior Penalty Event is cured.
(c)
No dividend on the Series B Preferred Stock will be declared by the Corporation or paid or set apart for payment by the Corporation at
such time as the terms and provisions of any Senior Shares or any agreement of the Corporation, including any agreement relating to its
indebtedness, prohibit such declaration, payment or setting apart for payment or such declaration, payment or setting apart for payment
would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or
prohibited under the DGCL or other applicable law; provided, however, notwithstanding anything to the contrary contained herein, dividends
on the Series B Preferred Stock shall continue to accrue without interest and accumulate regardless of whether: (i) any or all of the
foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the payment of
such dividends; or (iv) such dividends are authorized by the FAT Board. Accrued and unpaid dividends on the Series B Preferred Stock
will accumulate as of the Dividend Payment Date on which they first become payable or on the date of redemption of the Series B Preferred
Stock, as the case may be.
(d)
Except as provided in the next sentence, if any Series B Preferred Stock is outstanding, no dividends will be declared or paid or set
apart for payment on any Parity Shares or Junior Shares, unless all accumulated accrued and unpaid dividends are contemporaneously declared
and paid in cash, or declared and a sum of cash sufficient for the payment thereof is set apart for payment, on the Series B Preferred
Stock for all past Dividend Periods with respect to which full dividends were not paid on the Series B Preferred Stock in cash. When
dividends are not paid in full (or a sum sufficient for such full payment is not so set apart for payment) upon the Series B Preferred
Stock and upon all Parity Shares, all dividends declared, paid or set apart for payment upon the Series B Preferred Stock and all such
Parity Shares shall be declared and paid pro rata or declared and set apart for payment pro rata so that the amount of dividends declared
per share of Series B Preferred Stock and per share of such Parity Shares shall in all cases bear to each other the same ratio that accumulated
dividends per share of Series B Preferred Stock and such other Parity Shares (which shall not include any accumulation in respect of
unpaid dividends for prior dividend periods if such other Parity Shares do not bear cumulative dividends) bear to each other. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series B Preferred Stock which
may be in arrears, whether at the Dividend Rate or at the Penalty Rate.
(e)
Except as provided in paragraph (d) of this Section 3, unless all accumulated accrued and unpaid dividends on the Series B Preferred
Stock are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof is set apart for
payment for all past Dividend Periods with respect to which full dividends were not paid on the Series B Preferred Stock, no dividends
(other than payable in shares of Common Stock or Junior Shares ranking junior to the Series B Preferred Stock as to dividends and upon
liquidation) may be declared or paid or set apart for payment upon the Common Stock or any Junior Shares or Parity Shares, nor shall
any Common Stock or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration
(or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation (except by conversion
into or exchange for Junior Shares or by redemption, purchase or acquisition of stock under any employee benefit plan of the Corporation).
(f)
Holders of Series B Preferred Stock shall not be entitled to any dividend in excess of all accumulated accrued and unpaid dividends on
the Series B Preferred Stock as described in this Section 3. Any dividend payment made on the Series B Preferred Stock shall first be
credited against the earliest accumulated accrued and unpaid dividend due with respect to such shares which remains payable at the time
of such payment.
Section
4. Liquidation Preference.
(a)
Subject to the rights of the holders of Senior Shares and Parity Shares, in the event of any liquidation, dissolution, winding up or
Change of Control of the Corporation, whether voluntary or involuntary, before any payment or distribution of the assets of the Corporation
(whether capital or surplus) shall be made to or set apart for the holders of Junior Shares as to the distribution of assets on any liquidation,
dissolution, winding up or Change of Control of the Corporation, each holder of the Series B Preferred Stock shall be entitled to receive
an amount of cash equal to $25.00 per share of Series B Preferred Stock plus an amount in cash equal to all accumulated accrued and unpaid
dividends thereon (whether or not earned or declared) to the date of final distribution to such holders. If, upon any liquidation, dissolution,
winding up or Change of Control of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders
of the Series B Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any
other shares of any class or series of Parity Shares as to the distribution of assets on any liquidation, dissolution, winding up or
Change of Control of the Corporation, then such assets, or the proceeds thereof, shall be distributed among the holders of Series B Preferred
Stock and any such other Parity Shares ratably in accordance with the respective amounts that would be payable on such Series B Preferred
Stock and any such other Parity Shares if all amounts payable thereon were paid in full.
(b)
Written notice of any such liquidation, dissolution, winding up or Change of Control of the Corporation, stating the payment date or
dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first
class mail, postage pre-paid, not less than 20 nor more than 60 days prior to the payment date stated therein, to each record holder
of Series B Preferred Stock at the respective address of such holders as the same shall appear on the stock transfer records of the Corporation.
Subject
to the rights of the holders of Senior Shares and Parity Shares upon liquidation, dissolution, winding up or Change of Control, upon
any liquidation, dissolution, winding up or Change of Control of the Corporation, after payment shall have been made in full to the holders
of the Series B Preferred Stock, as provided in this Section 4, any other series or class or classes of Junior Shares shall, subject
to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series B Preferred Stock shall not be entitled to share therein.
Section
5. Redemption.
(a)
Optional Redemption at Election of Corporation. The Corporation may redeem the Series B Preferred Stock, in whole at any time
or from time to time in part, at the option of the Corporation, for cash, at the following redemption price per share of Series B Preferred
Stock, plus any unpaid dividends indicated in paragraph (b) of this Section 5:
(i)
After July 16, 2020 and on or prior to July 16, 2021: $27.50 per share.
(ii)
After July 16, 2021 and on or prior to July 16, 2022: $27.00 per share.
(iii)
After July 16, 2022 and on or prior to July 16, 2023: $26.50 per share.
(iv)
After July 16, 2023 and on or prior to July 16, 2024: $26.00 per share.
(v)
After July 16, 2024 and on or prior to July 16, 2025: $25.50 per share.
(vi)
After July 16, 2025: $25.00 per share.
If
fewer than all of the outstanding shares of Series B Preferred Stock are to be redeemed pursuant to the Corporation’s exercise
of its redemption right under this paragraph (a), the shares to be redeemed shall be selected pro rata (as nearly as practicable without
creating fractional shares) or by lot or in such other equitable method prescribed by the Corporation.
(b)
Unpaid Dividends. Upon any redemption of Series B Preferred Stock pursuant to this Section 5, the Corporation shall, subject to
the next sentence, pay any accumulated accrued and unpaid dividends in arrears for any Dividend Period ending on or prior to the Call
Date. If the Call Date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, then each holder of Series
B Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided
above, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on Series B Preferred Stock
called for redemption.
(c)
Redemption Procedures. Notice of the redemption of any Series B Preferred Stock under paragraph (a) of this Section 5 shall be
mailed by first class mail to each holder of record of Series B Preferred Stock to be redeemed at the address of each such holder as
shown on the Corporation’s records, not less than 20 nor more than 60 days prior to the date of redemption (the “Call
Date”). Neither the failure to mail any notice required by this paragraph (c), nor any defect therein or in the mailing
thereof, to any particular holder, shall affect the sufficiency of the notice or the validity of the proceedings for redemption with
respect to the other holders. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given
on the date mailed whether or not the holder receives the notice. Each such mailed notice shall state, as appropriate: (1) the Call Date;
(2) the number of shares of Series B Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed,
the number of such shares to be redeemed from such holder; (3) the redemption price per share of Series B Preferred Stock (determined
as set forth in paragraph (a) of this Section 5) plus accumulated accrued and unpaid dividends through the Call Date (determined as set
forth in paragraph (b) of this Section 5); (4) if any shares are represented by certificates, the place or places at which certificates
for such shares are to be surrendered; (5) that dividends on the shares to be redeemed shall cease to accrue on such Call Date except
as otherwise provided herein; and (6) any other information required by law or by the applicable rules of any exchange or national securities
market upon which the Series B Preferred Stock may be listed or admitted for trading. Notice having been mailed as aforesaid, from and
after the Call Date (unless the Corporation shall fail to make available an amount of cash necessary to effect such redemption), (i)
except as otherwise provided herein, dividends on the Series B Preferred Stock so called for redemption shall cease to accrue, (ii) said
shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Series B Preferred Stock
shall cease (except the right to receive cash payable upon such redemption, without interest thereon, upon surrender and endorsement
of their certificates if so required and to receive any dividends payable thereon).
(d)
Set Asides. The Corporation’s obligation to provide cash in accordance with the preceding subsection shall be deemed fulfilled
if, on or before the Call Date, the Corporation shall irrevocably deposit funds necessary for such redemption, in trust, with a bank
or trust company that has, or is an affiliate of a bank or trust company that has, capital and surplus of at least $50 million, with
irrevocable instructions that such cash be applied to the redemption of the Series B Preferred Stock so called for redemption, in which
case the notice to holders of the Series B Preferred Stock will (i) state the date of such deposit, (ii) specify the office of such bank
or trust company as the place of payment of the redemption price and (iii) require such holders to surrender the certificates, if any,
representing such shares at such place on or about the date fixed in such redemption notice (which may not be later than the Call Date)
against payment of the redemption price (including all accumulated accrued and unpaid dividends to the Call Date, determined as set forth
in paragraph (b) of this Section 5). No interest shall accrue for the benefit of the holders of Series B Preferred Stock to be redeemed
on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of six months from
the Call Date shall revert to the general funds of the Corporation after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Corporation for the payment of such cash.
(e)
Limitations on Redemption.
(i)
If all accumulated accrued and unpaid dividends on the Series B Preferred Stock and any other class or series of Parity Shares of the
Corporation have not been paid in cash (or, with respect to any Parity Shares, in Parity Shares), or declared and set apart for payment
in cash (or, with respect to any Parity Shares, in Parity Shares), then the Corporation shall not redeem, purchase or acquire any shares
of Series B Preferred Stock or Parity Shares, otherwise than (A) pursuant to a purchase or exchange offer made on the same terms to all
holders of Series B Preferred Stock and Parity Shares or (B) in exchange for Junior Shares.
(ii)
The Corporation shall not redeem, purchase or acquire any shares of Series B Preferred Stock or Parity Shares at such time as (A) the
terms and provisions of any Senior Shares or any agreement of the Corporation, including any agreement relating to its indebtedness,
prohibit such redemption, purchase or acquisition, or such redemption, purchase or acquisition would constitute a breach thereof or a
default thereunder, (B) if such redemption, purchase or acquisition is restricted or prohibited under the DGCL or other applicable law,
or (C) at any time that any optional or mandatory redemption has been triggered for any other shares of Series B Preferred Stock or Parity
Shares and has reached the final time required for payment.
Section
6. Status of Acquired Shares. All shares of Series B Preferred Stock issued and redeemed by the Corporation in accordance
with Section 5 hereof, or otherwise acquired by the Corporation, shall be restored to the status of authorized but unissued shares of
undesignated Preferred Stock of the Corporation.
Section
7. Ranking.
(a)
Any class or series of shares of stock of the Corporation shall be deemed to rank:
(i)
prior to the Series B Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if the holders of such class or series shall be entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution, winding up or Change of Control, as the case may be, in preference or priority to the holders of Series
B Preferred Stock (“Senior Shares”);
(ii)
on a parity with the Series B Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution,
winding up or Change of Control, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share
thereof be different from those of the Series B Preferred Stock, if the holders of such class or series and the Series B Preferred Stock
shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution, winding up or Change of Control
in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or
priority one over the other (“Parity Shares”); and
(iii)
junior to the Series B Preferred Stock, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution,
winding up or Change of Control, if such class or series shall be the Common Shares or any other class or series of shares of stock of
the Corporation now or hereafter issued and outstanding over which the Series B Preferred Stock have preference or priority in the payment
of dividends and in the distribution of assets upon any liquidation, dissolution, winding up or Change of Control of the Corporation
(“Junior Shares”).
(b)
The Corporation’s Series A Fixed Rate Cumulative Preferred Stock shall be considered Senior Shares relative to the Series B Preferred
Stock. The Corporation’s Series A-1 Fixed Rate Cumulative Preferred Stock shall be considered Parity Shares relative to the Series
B Preferred Stock. The Corporation’s Common Shares shall be considered Junior Shares relative to the Series B Preferred Stock.
Section
8. Voting Rights.
(a)
General. For purposes of this Section 8, each share of Series B Preferred Stock shall have one vote per share. Except as required
by applicable provisions of the DGCL or the Certificate of Incorporation, the Series B Preferred Stock shall not have any other relative,
participating, optional or other special voting rights and powers other than as set forth in this Section 8, and the consent of the holders
thereof shall not be required for the taking of any corporate action. No amendment to these terms of the Series B Preferred Stock shall
require the vote of the holders of Common Shares (except as required by law) or any other series of Preferred Stock.
(b)
Right to Elect Two Directors Upon Nonpayment.
(i)
If the Corporation fails to pay dividends on the Series B Preferred Stock provided for in paragraph (a) of Section 3 in full for any
eighteen (18) accumulated, accrued and unpaid Dividend Periods, whether consecutive or non-consecutive (a “Nonpayment Event”),
then the authorized number of directors on the FAT Board shall, at the next annual meeting of stockholders or at a special meeting of
stockholders as provided below, automatically be increased by two (2) and the holders of Series B Preferred Stock, voting together as
a single class, shall be entitled, at the Corporation’s next annual meeting of stockholders or at a special meeting of stockholders
as provided below, to vote for the election of a total of two (2) additional members of the FAT Board (the “Preferred Stock
Directors”); provided that the election of any such Preferred Stock Directors will not cause the Corporation to violate
the corporate governance requirements of The NASDAQ Stock Market LLC (or any other exchange or automated quotation system on which the
Corporation’s securities may be listed or quoted) that requires listed or quoted companies to have a majority of independent directors
or other applicable law; provided further, that such none of the Preferred Stock Directors shall be subject to any “Bad Actor”
disqualifications described in Rule 506(d)(l)(i) to (viii) under the Securities Act, except for a Disqualifying Event covered by Rule
506(d2) or (d)(3); and provided further, that the FAT Board shall, at no time, include more than two (2) Preferred Stock Directors.
(ii)
In the event of a Nonpayment Event, the holders of at least 25% of the outstanding shares of Series B Preferred Stock may request that
a special meeting of stockholders be called to elect such Preferred Stock Directors; provided, however, to the extent permitted by the
Corporation’s bylaws in effect from time to time, if the next annual or a special meeting of stockholders is scheduled to be held
within ninety (90) days of the receipt of such request, the election of such Preferred Stock Directors shall be included in the agenda
for, and shall be held at, such scheduled annual or special meeting of stockholders. The Preferred Stock Directors shall stand for reelection
annually, at each subsequent annual meeting of the stockholders, so long as the holders of Series B Preferred Stock continue to have
such voting rights. At any meeting at which the holders of Series B Preferred Stock are entitled to elect Preferred Stock Directors,
the holders of record of at least thirty-three and one-third percent (33 1/3%) of the then outstanding shares of Series B Preferred Stock,
present in person or represented by proxy, shall constitute a quorum and the vote of the holders of record of a majority of such shares
of Series B Preferred Stock so present or represented by proxy at any such meeting at which there shall be a quorum shall be sufficient
to elect the Preferred Stock Directors.
(iii)
If and when all accumulated and unpaid Dividends on Series B Preferred Stock have been paid in full (a “Nonpayment Remedy”),
the holders of Series B Preferred Stock shall immediately and, without any further action by the Corporation, be divested of the voting
rights described in this paragraph (b), subject to the revesting of such rights in the event of each subsequent Nonpayment Event. If
such voting rights for the holders of Series B Preferred Stock shall have terminated, the term of office of each Preferred Stock Director
so elected shall terminate at such time and the authorized number of directors on the FAT Board shall automatically decrease by two (2)
members.
(iv)
Any Preferred Stock Director may be removed at any time, with or without cause, by the holders of a majority in voting power of the outstanding
shares of Series B Preferred Stock then outstanding when they have the voting rights described in this paragraph (b). In the event that
a Nonpayment Event shall have occurred and there shall not have been a Nonpayment Remedy, any vacancy in the office of a Preferred Stock
Director (other than prior to the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the written
consent of the Preferred Stock Director remaining in office, except in the event that such vacancy is created as a result of such Preferred
Stock Director being removed or if no Preferred Stock Director remains in office, such vacancy may be filled by a vote of the holders
of a majority in voting power of the outstanding shares of Series B Preferred Stock then outstanding when they have the voting rights
described above; provided that the election of any such Preferred Stock Directors to fill such vacancy will not cause the Corporation
to violate the corporate governance requirements of The NASDAQ Stock Market LLC (or any other exchange or automated quotation system
on which the Corporation’s securities may be listed or quoted) that requires listed or quoted companies to have a majority of independent
directors or other applicable law. The Preferred Stock Directors shall each be entitled to one vote per director on any matter that may
come before the FAT Board for a vote.
(c)
Other Voting Rights. So long as any shares of Series B Preferred Stock are outstanding, the affirmative vote of the holders of
more than fifty percent (50%) of the Series B Preferred Stock then outstanding, given in person or by proxy, either in writing without
a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating:
(i)
Any amendment, alteration or repeal of any provisions of the Certificate of Incorporation or this Certificate that materially and adversely
affects the rights, preferences or voting power of the Series B Preferred Stock; provided, however, that the amendment of the Certificate
of Incorporation to authorize or create, or to increase or decrease the authorized amount of, the Series B Preferred Stock, or any Senior
Shares, Parity Shares or Junior Shares, shall not be deemed to materially or adversely affect the rights, preferences or voting power
of the Series B Preferred Stock;
(ii)
A statutory share exchange, consolidation with or merger of the Corporation with or into another entity or consolidation of the Corporation
with or merger of another entity into the Corporation, that in each case materially and adversely affects the rights, preferences or
voting power of the Series B Preferred Stock, unless in such case each share of Series B Preferred Stock shall be converted into or exchanged
for an amount of cash equal to or greater than the applicable redemption price called for under Section 5 hereof at the time of such
conversion or exchange or preferred shares of the surviving entity having preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or distributions, qualifications and terms or conditions of redemption thereof that are materially the same
as that of a share of Series B Preferred Stock; or
(iii)
Approving any waiver or amendment of the restrictions set forth in paragraphs (d) or (e) of Section 3 hereof;
provided,
however, that no such vote of the holders of Series B Preferred Stock shall be required if, at or prior to the time when any of the above
actions is to take effect, a deposit is made for the redemption in cash of all shares of Series B Preferred Stock at the time outstanding,
as provided in paragraph (d) of Section 5 hereof, for a redemption price called for under Section 5 at the time of such redemption.
(d)
Amendments without Holder Consent. Without the vote or consent of the holders of Series B Preferred Stock, so long as such action
does not adversely affect the special rights, preferences, privileges or voting powers of the Series B Preferred Stock and limitations
and restrictions thereof, the Corporation may amend, alter, supplement or repeal any terms of the Series B Preferred Stock to:
(i)
to cure any ambiguity or mistake, or to correct or supplement any provision contained in this Certificate that may be defective or inconsistent
with any other provision contained in this Certificate;
(ii)
to make any provision with respect to matters or questions relating to the Series B Preferred Stock that is not inconsistent with the
provisions of the Certificate of Incorporation or this Certificate; or
(iii)
to waive any of the Corporation’s rights with respect to the Series B Convertible Preferred Stock.
Section
9. Information Rights. During any period in which the Corporation is not subject to Section 13 or 15(d) of the Exchange
Act and any shares of Series B Preferred Stock are outstanding, the Corporation shall (a) transmit by mail to all holders of Series B
Preferred Stock, as their names and addresses appear in the Corporation’s record books and without cost to such holders, copies
of the annual reports and quarterly reports in substantially the same form that the Corporation would have been required to file with
the Securities and Exchange Commission (the “SEC”) pursuant to Section 13 or 15(d) of the Exchange Act if the
Corporation was subject to such sections (other than any exhibits that would have been required); and (b) promptly upon written request,
supply copies of such reports to any prospective holder of Series B Preferred Stock. The Corporation shall mail the reports to the holders
of Series B Preferred Stock within 15 days after the respective dates by which the Corporation would have been required to file the reports
with the SEC if the Corporation were then subject to Section 13 or 15(d) of the Exchange Act, assuming the Corporation is a “non-accelerated
filer” in accordance with the Exchange Act.
Section
10. Record Holders. The Corporation and the Transfer Agent shall deem and treat the record holder of any shares of Series
B Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be
affected by any notice to the contrary.
Section
11. Sinking Fund. The Series B Preferred Stock shall not be entitled to the benefits of any retirement or sinking fund.
Section
12. No Conversion Right. The shares of Series B Preferred Stock are not convertible into or exchangeable for any other
property or securities of the Corporation.
Section
13. Form of Security. The Series B Preferred Stock shall be issued as book-entry securities directly registered in the
stockholder’s name on the Corporation’s books and records or, if requested by any holder of the Series B Preferred Stock,
such holder’s shares may be issued in certificated form.