UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Statera Biopharma, Inc.
(Exact name of registrant as specified in its charter)
|
Delaware |
20-0077155 |
|
|
(State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification No.) |
|
|
2580 East Harmony Road, Suite 316 Fort Collins, CO 80528 |
80528 |
|
|
(Address of principal executive offices) |
(Zip Code) |
|
Securities to be registered pursuant to Section 12(b) of the Act:
|
Title of each class to be so registered |
Name of each exchange on which each class is to be registered |
|
|
Not Applicable |
Not Applicable |
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c) or (e), check the following box. ☐
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d) or (e), check the following box. ☒
If this form relates to the registration of a class of securities concurrently with a Regulation A offering, check the following box. ☐
Securities Act registration statement or Regulation A offering statement file number to which this form relates: N/A (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
|
Series B Preferred Stock, par value $0.005 per share |
|
(Title of class) |
|
Item 1. |
Description of Registrant’s Securities To Be Registered. |
On January 26, 2023, the board of directors (the “Board”) of Statera Biopharma, Inc. (the “Company”) declared a dividend of one one-thousandth of a share of Series B Preferred Stock, par value $0.005 per share (“Series B Preferred Stock”), for each outstanding share of the Company’s common stock, par value $0.005 per share (“Common Stock”) to stockholders of record at 5:00 p.m. Eastern Time on February 1, 2023 (the “Record Date”).
The preferences, rights, limitations and other matters relating to the Series B Preferred Stock are set forth in a Certificate of Designation of Preferences, Rights and Limitations of Series B Preferred Stock (the “Certificate of Designation”).
General; Transferability. Shares of Series B Preferred Stock will be uncertificated and represented in book-entry form. No shares of Series B Preferred Stock may be transferred by the 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 B 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 B 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 B Preferred Stock will have a ratable number of votes). Thus, each one-thousandth of a share of Series B Preferred Stock would entitle the holder thereof to 1,000 votes. The outstanding shares of Series B Preferred Stock will vote together with the outstanding shares of Common Stock of the Company as a single class exclusively with respect to (1) any proposal to adopt an amendment to the Company’s restated certificate of incorporation, as amended (the “Certificate of Incorporation”), to increase the number of authorized shares of Common Stock from 150,000,000 shares to 250,000,000 shares and to reflect a corresponding increase in the total number of shares the Corporation is authorized to issue from 151,000,000 shares to 251,000,000 shares (the “Authorized Share Increase”), (2) any proposal to adopt an amendment to the Certificate of Incorporation to effect a reverse stock split at a ratio of not less than 1-for-10 and not greater than 1-for-300, with the exact ratio, if approved and effected at all, to be set within that range at the discretion of the Board and publicly announced by the Company on or before March 11, 2024 without further approval or authorization of the stockholders (the “Reverse Stock Split”), and (3) any proposal to adjourn any meeting of stockholders called for the purpose of voting on the Authorized Share Increase and the Reverse Stock Split (the “Adjournment Proposal”). The Series B 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 Authorized Share Increase, the Reverse Stock Split or the Adjournment Proposal, the vote of each share of Series B Preferred Stock (or fraction thereof) entitled to vote on the Authorized Share Increase, the Reverse Stock Split and the Adjournment Proposal brought before any meeting of stockholders held to vote on such matters shall be cast in the same manner as the vote, if any, of the share of Common Stock (or fraction thereof) in respect of which such share of Series B Preferred Stock (or fraction thereof) was issued as a dividend is cast on the Authorized Share Increase, the Reverse Stock Split and the Adjournment Proposal, 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 B Preferred Stock (or fraction thereof) held by such holder. Holders of Series B Preferred Stock will not receive a separate ballot or proxy to cast votes with respect to the Series B Preferred Stock on the Authorized Share Increase, the Reverse Stock Split or the Adjournment Proposal brought before any meeting of stockholders held to vote on such matters.
Dividend Rights. The holders of Series B Preferred Stock, as such, will not be entitled to receive dividends of any kind.
Liquidation Preference. The Series B Preferred Stock will rank senior to the Common Stock as to any distribution of assets upon a liquidation, dissolution or winding up of the Company, whether voluntarily or involuntarily (a “Dissolution”). Upon any Dissolution, each holder of outstanding shares of Series B Preferred Stock will be entitled to be paid out of the assets of the Company available for distribution to stockholders, prior and in preference to any distribution to the holders of Common Stock, an amount in cash equal to $0.005 per outstanding share of Series B Preferred Stock.
Redemption. All shares of Series B Preferred Stock that are not voted by duly returning a proxy card prior to the opening of any meeting of stockholders held to vote on the Authorized Share Increase, the Reverse Stock Split and the Adjournment Proposal will automatically be redeemed in whole, but not in part, by the Company as of immediately prior to the opening of such meeting (the “Initial Redemption Time”) without further action on the part of the Company or the holder of shares of Series B Preferred Stock (the “Initial Redemption”). Any outstanding shares of Series B Preferred Stock that have not been redeemed pursuant to an Initial Redemption will be redeemed in whole, but not in part, automatically upon the approval by the Corporation’s stockholders of the Authorized Share Increase and the Reverse Stock Split at any meeting of stockholders held for the purpose of voting on such proposals. Notwithstanding the foregoing, the Board may, in its sole discretion and at any time, order redemption of all, but not part, of the outstanding shares of Series B Preferred Stock by delivering written notice of redemption to each holder of record of outstanding shares of Series B Preferred Stock not less than two (2) days prior to the redemption date specified in such notice.
Each share of Series B Preferred Stock redeemed in any redemption described above will be redeemed in consideration for the right to receive an amount equal to $0.005 in cash for each whole share of Series B Preferred Stock that are “beneficially owned” by the “beneficial owner” (as such terms are defined in the Certificate of Designation) thereof as of immediately prior to the applicable redemption time and redeemed pursuant to such redemption. However, the redemption consideration in respect of the shares of Series B Preferred Stock (or fractions thereof) redeemed in any redemption described above: (i) will entitle the former beneficial owners of less than two whole shares of Series B Preferred Stock redeemed in any redemption to no cash payment in respect thereof and (y) will, in the case of a former beneficial owner of a number of shares of Series B Preferred Stock (or fractions thereof) redeemed pursuant to any redemption that is not equal to a whole number that is a multiple of two, entitle such beneficial owner to the same cash payment, if any, in respect of such redemption as would have been payable in such redemption to such beneficial owner if the number of shares (or fractions thereof) beneficially owned by such beneficial owner and redeemed pursuant to such redemption were rounded down to the nearest whole number that is a multiple of two (such, that for example, the former beneficial owner of 21.5 shares of Series B Preferred Stock redeemed pursuant to any redemption will be entitled to receive the same cash payment in respect of such redemption as would have been payable to the former beneficial owner of 20 shares of Series B Preferred Stock redeemed pursuant to such redemption).
Miscellaneous. The distribution of the Series B Preferred Stock is not expected to be taxable to stockholders or to the Company. However, stockholders may, depending upon the circumstances, recognize taxable income in the event of the redemption of the Series B Preferred Stock as described above. The Series B Preferred Stock is not convertible into, or exchangeable for, shares of any other class or series of stock or other securities of the Company. The Series B Preferred Stock has no stated maturity and is not subject to any sinking fund. The Series B Preferred Stock is not subject to any restriction on the redemption or repurchase of shares by the Company while there is any arrearage in the payment of dividends or sinking fund installments.
* * * * *
The foregoing description of the Series B 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 hereto and is incorporated herein by reference.
|
Item 2. |
Exhibits. |
|
Exhibit No. |
Description |
|
|
3.1 |
||
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
Statera Biopharma, Inc. |
|
|
|
|
|
|
|
|
|
|
|
|
|
Date: February 1, 2023 |
By: |
/s/ Michael K. Handley |
|
|
|
Name: |
Michael K. Handley |
|
|
|
Title: |
Chief Executive Officer |
|
Exhibit 3.1
STATERA BIOPHARMA, INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES B PREFERRED STOCK
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned, Michael Handley and Christopher Zosh, do hereby certify that:
1. They are the Chief Executive Officer/President and Interim Principal Financial Officer/Interim Principal Accounting Officer/Executive Vice President of Finance, respectively, of Statera Biopharma, Inc., a Delaware corporation (the “Corporation”).
2. The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
WHEREAS, the Restated Certificate of Incorporation of the Corporation (as amended, the “Certificate of Incorporation”) provides for a class of capital stock of the Corporation known as preferred stock, consisting of 1,000,000 shares, par value $0.005 per share (the “Preferred Stock”), issuable from time to time in one or more series,
WHEREAS, the Certificate of Incorporation further provides that the Board of Directors is expressly authorized, subject to limitations prescribed by law, to provide for the issuance of the shares of Preferred Stock in one or more series, and by filing a certificate of designation pursuant to the DGCL, to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers (including voting powers), preferences and rights of each such series and the qualifications, limitations or restrictions thereof, and
WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of the preferred stock, which shall consist of Seventy Thousand (70,000) shares of the preferred stock which the Corporation has the authority to issue, as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock as dividends on the outstanding shares of the Corporation’s common stock, par value $0.005 per share (“Common Stock”), at a rate of one one-thousandth (1/1000th) of a share of such preferred stock per share of Common Stock, and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:
TERMS OF SERIES B PREFERRED STOCK
|
1. |
Designation, Amount and Par Value. The series of Preferred Stock created hereby shall be designated as the Series B Preferred Stock (the “Series B Preferred Stock”), and the number of shares so designated shall be Seventy Thousand (70,000). Each share of Series B Preferred Stock shall have a par value of $0.005 per share. |
|
2. |
Dividends. The holders of Series B Preferred Stock (the “Holders” and each a “Holder”), as such, shall not be entitled to receive dividends of any kind on shares of Series B Preferred Stock. |
|
3. |
Voting Rights. Except as otherwise provided by the Certificate of Incorporation or required by law, the Holders of shares of Series B Preferred Stock shall have the following voting rights: |
|
3.1 |
Except as otherwise provided herein, each outstanding share of Series B Preferred Stock shall have 1,000,000 votes per share (and, for the avoidance of doubt, each fraction of a share of Series B Preferred Stock shall have a ratable number of votes). The outstanding shares of Series B Preferred Stock shall vote together with the outstanding shares of Common Stock as a single class exclusively with respect to the Authorized Share Increase, the Reverse Stock Split and the Adjournment Proposal (all as defined below) and shall not be entitled to vote on any other matter except to the extent required under the DGCL. Notwithstanding the foregoing, and for the avoidance of doubt, each share of Series B Preferred Stock (or fraction thereof) redeemed pursuant to the Initial Redemption (as defined below) shall have no voting power with respect to, and the Holder of each share of Series B Preferred Stock (or fraction thereof) redeemed pursuant to the Initial Redemption shall have no voting power with respect to any such share of Series B Preferred Stock (or fraction thereof) on, the Authorized Share Increase, the Reverse Stock Split, the Adjournment Proposal or any other matter brought before any meeting of stockholders held to vote on the Authorized Share Increase and the Reverse Stock Split. As used herein, (1) the term “Authorized Share Increase” means any proposal to adopt an amendment to the Certificate of Incorporation to increase the number of authorized shares of Common Stock from 150,000,000 shares to 250,000,000 shares and to reflect a corresponding increase in the total number of shares the Corporation is authorized to issue from 151,000,000 shares to 251,000,000 shares, (2) the term “Reverse Stock Split” means any proposal to adopt an amendment to the Certificate of Incorporation to effect a reverse stock split at a ratio of not less than 1-for-10 and not greater than 1-for-300, with the exact ratio, if approved and effected at all, to be set within that range at the discretion of the Board of Directors and publicly announced by the Corporation on or before March 11, 2024 without further approval or authorization of the Corporation’s stockholders, and (3) “Adjournment Proposal” means any proposal to adjourn any meeting of stockholders called for the purpose of voting on the Authorized Share Increase and the Reverse Stock Split. |
|
3.2 |
Unless otherwise provided on any applicable proxy or ballot with respect to the voting on the Authorized Share Increase, the Reverse Stock Split or the Adjournment Proposal, the vote of each share of Series B Preferred Stock (or fraction thereof) entitled to vote on the Authorized Share Increase, the Reverse Stock Split or the Adjournment Proposal shall be cast in the same manner as the vote, if any, of the share of Common Stock (or fraction thereof) in respect of which such share of Series B Preferred Stock (or fraction thereof) was issued as a dividend is cast on the Authorized Share Increase, 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 B Preferred Stock (or fraction thereof) held by such Holder. Holders of Series B Preferred Stock will not receive a separate ballot or proxy to cast votes with respect to the Series B Preferred Stock on the Authorized Share Increase, the Reverse Stock Split, the Adjournment Proposal or any other matter brought before any meeting of stockholders held to vote on the Authorized Share Increase and the Reverse Stock Split. |
|
4. |
Rank; Liquidation. |
|
4.1 |
The Series B Preferred Stock shall rank senior to the Common Stock as to any distribution of assets upon a liquidation, dissolution or winding up of the Corporation, whether voluntarily or involuntarily (a “Dissolution”). For the avoidance of any doubt, but without limiting the foregoing, neither the merger or consolidation of the Corporation with or into any other entity, nor the sale, lease, exchange or other disposition of all or substantially all of the Corporation’s assets shall, in and of itself, be deemed to constitute a Dissolution. |
|
4.2 |
Upon any Dissolution, each Holder of outstanding shares of Series B Preferred Stock shall be entitled to be paid out of the assets of the Corporation available for distribution to stockholders, prior and in preference to any distribution to the holders of Common Stock, an amount in cash equal to $0.005 per outstanding share of Series B Preferred Stock. |
|
5. |
Redemption. |
|
5.1 |
All shares of Series B Preferred Stock that are not voted by duly signing, dating and returning a proxy card prior to the opening of any meeting of stockholders held to vote on the Authorized Share Increase, the Reverse Stock Split and the Adjournment Proposal shall automatically be redeemed by the Corporation as of immediately prior to the opening of such meeting (the “Initial Redemption Time”) without further action on the part of the Corporation or the Holder thereof (the “Initial Redemption”). |
|
5.2 |
Any outstanding shares of Series B Preferred Stock that have not been redeemed pursuant to an Initial Redemption shall be redeemed in whole, but not in part, automatically upon the approval by the Corporation’s stockholders of the Authorized Share Increase and the Reverse Stock Split at any meeting of stockholders held for the purpose of voting on such proposal (any such redemption pursuant to this Section 5.2, the “Subsequent Redemption”). As used herein, the “Subsequent Redemption Time” shall mean the effective time of the Subsequent Redemption. |
|
5.3 |
Notwithstanding anything to the contrary herein or otherwise, the Board of Directors may, in its sole discretion and at any time, order redemption of all (but not part) of the outstanding shares of Series B Preferred Stock by delivering written notice of redemption to each Holder of record of outstanding shares of Series B Preferred Stock not less than two (2) days prior to the redemption date specified in such notice (the “Discretionary Redemption” and, together with the Initial Redemption and Subsequent Redemption, the “Redemptions”). As used herein, the “Redemption Time” shall mean (i) with respect to the Initial Redemption, the Initial Redemption Time, (ii) with respect to the Subsequent Redemption, the Subsequent Redemption Time, and (iii) with respect to the Discretionary Redemption, such time and date specified by the Board of Directors in its sole discretion for the effectiveness of the Discretionary Redemption. |
|
5.4 |
Each share of Series B Preferred Stock redeemed in any Redemption pursuant to this Section 5 shall be redeemed in consideration for the right to receive an amount equal to $0.01 in cash for each two whole shares of Series B Preferred Stock that are “beneficially owned” by the “beneficial owner” (as such terms are defined below) thereof as of immediately prior to the applicable Redemption Time and redeemed pursuant to such Redemption, payable upon the applicable Redemption Time; provided, however, that for the avoidance of doubt, the redemption consideration in respect of the shares of Series B Preferred Stock (or fractions thereof) redeemed in any Redemption pursuant to this Section 5: (x) shall entitle the former beneficial owners of less than two (2) whole shares of Series B Preferred Stock redeemed in any Redemption to no cash payment in respect thereof and (y) shall, in the case of a former beneficial owner of a number of shares of Series B Preferred Stock (or fractions thereof) redeemed pursuant to any Redemption that is not equal to a whole number that is a multiple of two, entitle such beneficial owner to the same cash payment, if any, in respect of such Redemption as would have been payable in such Redemption to such beneficial owner if the number of shares (or fractions thereof) beneficially owned by such beneficial owner and redeemed pursuant to such Redemption were rounded down to the nearest whole number that is a multiple of two (such, that for example, the former beneficial owner of 21.5 shares of Series B Preferred Stock redeemed pursuant to any Redemption shall be entitled to receive the same cash payment in respect of such Redemption as would have been payable to the former beneficial owner of 20 shares of Series B Preferred Stock redeemed pursuant to such Redemption). As used herein, “Person” shall mean any individual, firm, corporation, partnership, limited liability company, trust or other entity, and shall include any successor (by merger or otherwise) to such entity. As used herein, a Person shall be deemed the “beneficial owner” of, and shall be deemed to “beneficially own,” any securities which such Person is deemed to beneficially own, directly or indirectly, within the meaning of Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended. |
|
5.5 |
From and after the time at which any shares of Series B Preferred Stock are called for redemption (whether automatically or at the direction of the Board of Directors) in accordance with Sections 5.1, 5.2 or 5.3, such shares of Series B Preferred Stock shall cease to be outstanding, and the only right of the former Holders of such shares of Series B Preferred Stock, as such, will be to receive the applicable redemption price, if any. The shares of Series B Preferred Stock redeemed by the Corporation pursuant to this Certificate of Designation of Preferences, Rights and Limitations of Series B Preferred Stock of the Corporation (the “Certificate of Designation”) shall, upon such redemption, be automatically retired and restored to the status of authorized but unissued shares of Preferred Stock. Notwithstanding anything to the contrary herein or otherwise, and for the avoidance of doubt, any shares of Series B Preferred Stock (or fraction thereof) that have been redeemed pursuant to an Initial Redemption shall not be deemed to be outstanding for the purpose of voting or determining the number of votes entitled to vote on any matter submitted to stockholders (including the Authorized Share Increase, the Reverse Stock Split, the Adjournment Proposal or any other matter brought before any meeting of stockholders held to vote on the Authorized Share Increase and the Reverse Stock Split) from and after the time of the Initial Redemption. Notice of any meeting of stockholders for the submission to stockholders of any proposals to approve the Authorized Share Increase and the Reverse Stock Split shall constitute notice of a redemption of shares of Series B Preferred Stock pursuant to an Initial Redemption and result in the automatic redemption of the applicable shares of Series B Preferred Stock (and/or fractions thereof) pursuant to the Initial Redemption at the Initial Redemption Time pursuant to Section 5.1 hereof. Notice by the Corporation of the stockholders’ approval of the Authorized Share Increase and the Reverse Stock Split, whether by press release or by the filing of a Current Report on Form 8-K with the Securities and Exchange Commission, shall constitute a notice of a redemption of shares of Series B Preferred Stock pursuant to a Subsequent Redemption and result in the automatic redemption of the applicable shares of Series B Preferred Stock (and/or fractions thereof) pursuant to the Subsequent Redemption at the Subsequent Redemption Time pursuant to Section 5.2 hereof. In connection with the filing of this Certificate of Designation, the Corporation has set apart funds for payment for the redemption of all shares of Series B Preferred Stock pursuant to the Redemptions and shall continue to keep such funds apart for such payment through the payment of the purchase price for the redemption of all such shares. |
|
6. |
Transfer. No shares of Series B Preferred Stock may be Transferred (as defined below) by the Holder thereof except in connection with a transfer by such Holder of any shares of Common Stock held thereby, in which case a number of one one-thousandths (1/1,000ths) of a share of Series B Preferred Stock equal to the number of shares of Common Stock to be transferred by such Holder shall be automatically transferred to the transferee of such shares of Common Stock. Notice of the foregoing restrictions on transfer shall be given in accordance with Section 151 of the DGCL. For the purpose of this Section 6, “Transfer” means, directly or indirectly, whether by merger, consolidation, share exchange, division, or otherwise, the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of the shares of Series B Preferred Stock (or any right, title or interest thereto or therein) or any agreement, arrangement or understanding (whether or not in writing) to take any of the foregoing actions. |
|
7. |
Fractional Shares. The Series B Preferred Stock may be issued in whole shares or in any fraction of a share that is one one-thousandth (1/1,000th) of a share or any integral multiple of such fraction, which fractions shall entitle the Holder, in proportion to such Holder’s fractional shares, to exercise voting rights, participate in distributions upon a Dissolution and have the benefit of any other rights of Holders of Series B Preferred Stock. |
|
8. |
Miscellaneous. |
|
8.1 |
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: Chief Executive Officer, facsimile number (321) 441-9763, with a copy sent to attention of the Corporation’s Interim Principal Financial Officer, facsimile number (321) 441-9763, or such other facsimile number or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 8.1. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to each record Holder at the facsimile number, or address of such Holder appearing on the books of the Corporation. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section 8.1 prior to 5:30 p.m. (New York City time) on any Trading Day, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. For the purpose of this Section 8.1, (i) “Trading Day” means a day on which the principal Trading Market is open for business, and (ii) “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing). |
|
8.2 |
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict of laws thereof. The rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Certificate of Designation or any amendments thereto. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Certificate of Designation (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the State of Delaware, (the “Delaware Courts”). |
|
8.3 |
Uncertificated Shares. The shares of Series B Preferred Stock shall be uncertificated and represented in book-entry form. |
|
8.4 |
Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing. |
|
8.5 |
Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. |
|
8.6 |
Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made or other obligation performed on the next succeeding Business Day. |
|
8.7 |
Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof. |
|
8.8 |
Amendment. In addition to any other vote or consent required by the Certificate of Incorporation (including this Certificate of Designation) or required by law, any of the provisions, terms, rights, powers, preferences and other terms of the Series B Preferred Stock set forth herein may be amended or waived on behalf of all Holders of Series B Preferred Stock by the affirmative written consent or vote of the Holders of at least a majority of the shares of Series B Preferred Stock then outstanding. |
*********************
RESOLVED, FURTHER, that the chief executive officer, the president, the chief financial officer or any vice-president, and the secretary or any assistant secretary, of the Corporation be and they hereby are authorized and directed to prepare and file this Certificate of Designation of Preferences, Rights and Limitations in accordance with the foregoing resolution and the provisions of Delaware law.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this 31st day of January, 2023.
|
/s/ Michael Handley |
/s/ Christopher Zosh |
|
|
Name: Michael Handley Title: Chief Executive Officer and President |
Name: Christopher Zosh Title: Interim Principal Financial Officer, Interim Principal Accounting Officer |