Item 5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
August 26, 2022, our board of directors (the “Board”) declared a dividend of one one-thousandth of a
share of our Series C Preferred Stock, par value $0.001 per share (“Series C Preferred Stock”), on each outstanding
share of our common stock, par value $0.001 per share (“Common Stock”), to stockholders of record on September
5, 2022 (the “Record Date”).
General; Transferability.
The Board has adopted resolutions providing that shares of Series C Preferred Stock will be uncertificated. As a result, outstanding shares
of Series C Preferred Stock will be represented in book-entry form. The certificate of designation governing Series C Preferred Stock
provides that shares of Series C Preferred Stock may not be transferred by any holder thereof except in connection with a transfer by
such holder of any shares of Common Stock held by such holder, in which case a number of one one-thousandths (1/1,000ths) of a share of
Series C Preferred Stock equal to the number of shares of Common Stock to be transferred by such holder will be automatically transferred
to the transferee of such shares of Common Stock.
Voting Rights.
Each share of Series C Preferred Stock will entitle the holder thereof to 1,000,000 votes per share (and, for the avoidance of doubt,
each fraction of a share of Series C Preferred Stock will have a ratable number of votes). Thus, each one-thousandth of a share of Series
C Preferred Stock will entitle the holder thereof to 1,000 votes. The outstanding shares of Series C Preferred Stock will vote together
with the outstanding shares of Common Stock as a single class exclusively with respect to (1) any proposal to adopt an amendment to our
Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), to reclassify
the outstanding shares of Common Stock into a smaller number of shares of Common Stock at a ratio specified in or determined in accordance
with the terms of any such amendment (the “Reverse Stock Split”) and (2) any proposal to adjourn any meeting
of stockholders called for the purpose of voting on Reverse Stock Split (the “Adjournment Proposal”). The Series
C Preferred Stock will not be entitled to vote on any other matter, except to the extent required under the Delaware General Corporation
Law.
Unless otherwise provided
on any applicable proxy or ballot with respect to the voting on the Reverse Stock Split or the Adjournment Proposal, as applicable, the
holder of each share of Series C Preferred Stock (or fraction thereof) entitled to vote on the Reverse Stock Split or the Adjournment
Proposal, as applicable, at any meeting of stockholders held to vote on the Reverse Stock Split will be cast in the same manner as the
vote, if any, of the holder of the share of Common Stock (or fraction thereof) in respect of which such share of Series C Preferred Stock
(or fraction thereof) was issued as a dividend is cast on the Reverse Stock Split or the Adjournment Proposal, as applicable, and the
proxy or ballot with respect to shares of Common Stock held by any holder on whose behalf such proxy or ballot is submitted will be deemed
to include all shares of Series C Preferred Stock (or fraction thereof) held by such holder. Holders of Series C Preferred Stock will
not receive a separate ballot or proxy to cast votes with respect to the Series C Preferred Stock on the Reverse Stock Split or the Adjournment
Proposal brought before any meeting of stockholders held to vote on the Reverse Stock Split.
Dividend Rights.
The holders of Series C Preferred Stock, as such, will not be entitled to receive dividends of any kind.
Liquidation Preference.
The Series C Preferred Stock will rank senior to the Common Stock as to any distribution of our assets upon a liquidation, dissolution
or winding up of our company, whether voluntarily or involuntarily (a “Dissolution”). Upon any Dissolution,
each holder of outstanding shares of Series C Preferred Stock will be entitled to be paid out of our assets available for distribution
to stockholders, prior and in preference to any distribution to the holders of Common Stock, an amount in cash equal to $0.001 per outstanding
share of Series C Preferred Stock.
Redemption.
All shares of Series C Preferred Stock that are not present in person or by proxy at any meeting of stockholders held to vote on the Reverse
Stock Split as of immediately prior to the opening of the polls at such meeting (the “Initial Redemption Time”)
will automatically be redeemed by us at the Initial Redemption Time without further action on our part or on the part of the holder of
shares of Series C Preferred Stock (the “Initial Redemption”). Any outstanding shares of Series C Preferred
Stock that have not been redeemed pursuant to the Initial Redemption will automatically be redeemed in whole, but not in part, at the
close of business on the earlier of (i) the business day established by the Board in its sole discretion and (ii) the first business day
following the date on which our stockholders approve the Reverse Stock Split.
Each
share of Series C Preferred Stock redeemed in accordance with the certificate of designation governing the Series C Preferred Stock (the
“Certificate of Designation”) will be deemed to be redeemed immediately prior to the redemption time
described above. From and after such redemption time, each share of Series C Preferred Stock redeemed pursuant to the Certificate of Designation
will no longer be deemed to be outstanding and all rights in respect of such share of Series C Preferred Stock will cease, except for
the right to receive $0.001 in cash.
Miscellaneous.
The Series C Preferred Stock is not convertible into, or exchangeable for, shares of any other class or series of our stock or other securities.
The Series C Preferred Stock has no stated maturity and is not subject to any sinking fund.
The Certificate of Designation
was filed with the Delaware Secretary of State and became effective on August 26, 2022. The foregoing description of the Series C Preferred
Stock does not purport to be complete and is qualified in its entirety by reference to the Certificate of Designation, which is filed
as Exhibit 3.1(a) to this Current Report and is incorporated herein by reference.