Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
November 5, 2021, the Company filed a Certificate of Designation with the Secretary of State of the State of Delaware to authorize the
issuance of up to 30,000 shares of Series P Preferred Stock. The following is a summary of certain terms of the Series P Preferred Stock.
General.
The Company’s Board of Directors has designated 30,000 shares of the 5,000,000 authorized shares of preferred stock as the Series
P Preferred Stock. Each share of the Series P Preferred Stock has a stated value of $1,000.
Voting
Rights. Except as provided below or by law, the Series P Preferred Stock shall have no voting rights. However, as long as any shares
of Series P Preferred Stock are outstanding, the Company shall not, without the affirmative vote of the holders of a majority of the
then outstanding shares of the Series P Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the
Series P Preferred Stock or alter or amend the Certificate of Designation, (b) amend its certificate of incorporation or other charter
documents in any manner that adversely affects any rights of the holders, (c) increase the number of authorized shares of the Series
P Preferred Stock, or (d) enter into any agreement with respect to any of the foregoing.
Dividends.
Dividends at the rate per annum of 10% of the stated value per share shall accrue on each outstanding share of Series P Preferred Stock
from and after the date of the original issuance of such share of Series P Preferred Stock (the “Preferred Accruing Dividends”).
The Preferred Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative and non-compounding;
provided, however, that such Preferred Accruing Dividends shall be payable only when, as, and if declared by the Board
of Directors. No cash dividends shall be paid on the common stock unless the Preferred Accruing Dividends are paid.
Rank.
The Series P Preferred Stock ranks with respect to dividends or a liquidation, (i) on parity with the common stock, the Company’s
Series H Convertible Preferred Stock, the Company’s Series L Convertible Preferred Stock, the Company’s Series M Convertible
Redeemable Preferred Stock, the Company’s Series N Convertible Redeemable Preferred Stock, and the Company’s Series O Convertible
Redeemable Preferred Stock, (ii) senior to the Company’s Series F Convertible Preferred Stock, and (iii) junior to any other class
or series of preferred stock of the Company afterwards created and ranking by its terms senior to the Series P Preferred Stock.
Conversion.
Each share of the Series P Preferred Stock is convertible into shares of the Company’s common stock, at any time and from time
to time, at the option of the holder, into that number of shares of common stock determined by dividing the stated value of such share
of Series P Preferred Stock, plus any accrued declared and unpaid dividends, by the conversion price. The conversion price is equal to
90% of the lowest VWAP during the 10 trading days immediately prior to the conversion date. Holders of the Series P Preferred Stock are
prohibited from converting Series P Preferred Stock into shares of common stock if, as a result of such conversion, the holder, together
with its affiliates, would own more than 9.99% of the total number of shares of common stock then issued and outstanding. However, any
holder may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage
shall not be effective until 61 days after notice to the Company.
Liquidation
Preference. Upon any liquidation, dissolution or winding up of the Company, the holders of the Series P Preferred Stock shall be
entitled to receive an amount equal to the stated value of the Series P Preferred Stock, plus any accrued declared and unpaid dividends
thereon and any other fees or liquidated damages then due and owing thereon, for each share of the Series P Preferred Stock before any
distribution or payment shall be made on any junior securities.
Redemption.
At any time the Company shall have the right to redeem all, or any part, of the Series P Preferred Stock then outstanding. The Series
P Preferred Stock subject to redemption shall be redeemed by the Company in cash in an amount equal to the stated value of the shares
of the Series P Preferred Stock being redeemed plus all accrued declared and unpaid dividends.
The
foregoing description of the Series P Preferred Stock does not purport to be complete and is qualified by reference to the Certificate
of Designation of the Series P Preferred Stock, a copy of which is filed as Exhibit 3.28 to this Current Report on Form 8-K and is incorporated
herein by reference.
On
November 5, 2021, the Company filed an Amendment to its Certificate of Incorporation (“the Amendment”). As previously announced
in its Information Statement, dated October 7, 2021, the Company’s Board of Directors and stockholders had approved two proposals.
Proposal 1: To approve
an amendment to our Certificate of Incorporation, as amended, to increase the number of authorized shares of our Common Stock from 10,000,000,000
to 50,000,000,000 shares.
Proposal 2: To approve
an amendment to our Certificate of Incorporation, as amended, to provide that the number of authorized shares of Common Stock or Preferred
Stock may be increased or decreased (but not below the number of shares then outstanding) by the affirmative vote of the holders of a
majority in voting power of the stock of the Company entitled to vote generally in the election of directors, irrespective of the provisions
of Section 242(b)(2) of the General Corporation Law of the State of Delaware (or any successor provision thereto), voting together as
a single class, without a separate vote of the holders of the class or classes the number of authorized shares of which are being increased
or decreased unless a vote by any holders of one or more series of Preferred Stock is required by the express terms of any series of
Preferred Stock pursuant to the terms thereof.
As
a result of the filing of the Amendment, these two proposals are now in effect.