Item 3.03. Material Modification to Rights of Security Holders.
The disclosure set forth in Item 5.03 of this Current Report on Form 8-K is
hereby incorporated into this Item 3.03 by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year. Series E Preferred Stock
On
Properties, Inc.
of one one-thousandth (1/1,000th) of a share of the Company’s Series E
Redeemable Preferred Shares, no par value per share (the “Series E Preferred
Stock”), for each outstanding share of the Company’s common stock, no par value
per share (the “Common Stock”), payable on
record at
Date”). The following is a summary of the material terms and provisions of the
Series E Preferred Stock.
General; Transferability
Shares of Series E Preferred Stock will be uncertificated and represented in
book-entry form. No shares of Series E 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-thousandth (1/1,000th) of a share of Series E 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 E 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 E Preferred Stock will have a ratable number of votes). Thus,
each one-thousandth of a share of Series E Preferred Stock will entitle the
holder thereof to 1,000 votes. The outstanding shares of Series E 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 submitted
to holders of Common Stock to approve an amendment to the Company’s Amended and
Restated Articles of Incorporation, as currently in effect, to (A) (i) reduce
the liquidation preference of the Company’s 10.875% Series A Cumulative
Redeemable Preferred Shares, no par value per share (the “Series A Preferred
Stock”), to
the Series A Preferred Stock, (iii) eliminate future dividends on the Series A
Preferred Stock, (iv) eliminate penalty events and the right of holders of
Series A Preferred Stock to elect directors upon the occurrence of a penalty
event, (v) reduce the redemption price of the Series A Preferred Stock in the
event of an optional redemption to
price of the Series A Preferred Stock in the event of a “change of control” to
Preferred Stock when voting as a single class with any other class or series of
stock to one vote per
the authorized number of shares of the Company to 61,000,000 shares, consisting
of 55,000,000 shares of common stock and 6,000,000 shares of preferred stock,
and subsequently decrease the authorized number of shares of the Company to
60,000,000 shares, consisting of 55,000,000 shares of common stock and 5,000,000
shares of preferred stock (collectively, the “Common Charter Amendment
Proposal”), and (2) any proposal to approve the adjournment of any meeting of
shareholders called for the purpose of voting on the Common Charter Amendment
Proposal (the “Adjournment Proposal”). The Series E Preferred Stock will not be
entitled to vote on any other matter, except to the extent required under the
Georgia Business Corporation Code.
Unless otherwise provided on any applicable proxy card or voting instructions
with respect to the voting on the Common Charter Amendment Proposal or the
Adjournment Proposal, the vote of each share of Series E Preferred Stock (or
fraction thereof) entitled to vote on the Common Charter Amendment Proposal, the
Adjournment Proposal or any other matter brought before any meeting of
shareholders held to vote on the Common Charter Amendment Proposal and 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 E Preferred Stock (or fraction thereof) was issued as a dividend is
cast on the Common Charter Amendment Proposal, the Adjournment Proposal or such
other matter, as applicable, and the proxy card or voting instructions with
respect to shares of Common Stock held by any holder on whose behalf such proxy
card or voting instructions is submitted will be deemed to include all shares of
Series E Preferred Stock (or fraction thereof) held by such holder. Holders of
Series E Preferred Stock will not receive a separate proxy card or opportunity
to cast votes with respect to the Series E Preferred Stock on the Common Charter
Amendment Proposal, the Adjournment Proposal or any other matter brought before
any meeting of shareholders held to vote on the Common Charter Amendment
Proposal.
Dividend Rights
The holders of Series E Preferred Stock, as such, will not be entitled to
receive dividends of any kind.
Liquidation Preference
The Series E 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”). The Series E
Preferred Stock will rank junior to the Series A Preferred Stock as to any
distribution of assets upon a Dissolution. Upon any Dissolution, each holder of
outstanding shares of Series E Preferred Stock will be entitled to be paid out
of the assets of the Company available for distribution to shareholders, after
the distribution to the holders of Series A Preferred Stock and prior and in
preference to any distribution to the holders of Common Stock, an amount in cash
equal to
Redemption
All shares of Series E Preferred Stock that are not present in person or by
proxy at any meeting of shareholders held to vote on the Common Charter
Amendment Proposal and the Adjournment Proposal as of immediately prior to the
opening of the polls on the Common Charter Amendment Proposal at such meeting
(the “Initial Redemption Time”) will automatically be redeemed by the Company at
the Initial Redemption Time without further action on the part of the Company or
the holder of shares of Series E Preferred Stock (the “Initial Redemption”). Any
outstanding shares of Series E Preferred Stock that have not been redeemed
pursuant to an Initial Redemption will be redeemed in whole, but not in part,
(i) if such redemption is ordered by the Board in its sole discretion,
automatically and effective on such time and date specified by the Board in its
sole discretion or (ii) automatically upon the approval by the Company’s
shareholders of the Common Charter Amendment Proposal at any meeting of
shareholders held for the purpose of voting on such proposal.
Each share of Series E Preferred Stock redeemed in any redemption described
above will be redeemed for no consideration.
. . .
Item 5.07. Submission of Matters to a Vote of Security Holders.
On
at Sonesta Gwinnett Place Atlanta, located at
Georgia
the proposals that were submitted to the holders of the Common Stock for
approval at the Annual Meeting and a tabulation of the votes with respect to
each proposal. Each proposal is further described in the Company’s Notice of
2022 Annual Meeting of Shareholders with respect to the Annual Meeting and the
Definitive Proxy Statement with respect to the Annual Meeting (the “Proxy
Statement”).
Proposal 1. To elect the six director nominees named in the Proxy Statement.
The shareholders elected the following six individuals to the Board to serve
until the Company’s 2023 Annual Meeting of Shareholders and until their
successors are elected and qualified, or until their earlier death, resignation
or removal, other than Messrs. Grossman and Martin, who will serve until the
second consecutive dividend payment date following such time as the Company has
paid all accumulated and unpaid dividends on the Series A Preferred Stock. The
voting results were as follows:
Nominee For Withheld Broker Non-Votes
Michael J. Fox 543,735 744,650 1,346,780
Kenneth S. Grossman 1,093,412 194,973 1,346,780
Steven L. Martin 1,095,499 192,886 1,346,780
Brent Morrison 854,271 434,114 1,346,780
Kenneth W. Taylor 719,694 568,691 1,346,780
David A. Tenwick 562,463 725,922 1,346,780
Proposal 2. To consider an advisory vote on executive compensation.
The shareholders approved, on an advisory basis, the Company’s executive
compensation. The voting results were as follows:
For Against Abstain Broker Non-Votes 669,880 604,155 14,350 1,346,780
Proposal 3. To ratify the appointment of
independent registered public accounting firm for the year ending
2022
The shareholders ratified the appointment of
independent registered public accounting firm for the year ending
2022
For Against Abstain
2,449,745 174,265 11,155
Item 7.01. Regulation FD Disclosure.
On
Preferred Stock dividend. A copy of that press release is furnished as Exhibit
99.1 to this Current Report on Form 8-K and incorporated herein by reference.
The information provided pursuant to Item 7.01 of this Current Report on Form
8-K, including Exhibit 99.1, is “furnished” and shall not be deemed to be
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), or otherwise subject to the liabilities of such
section, and shall not be incorporated by reference in any filing made by the
Company under the Exchange Act or the Securities Act of 1933, as amended (the
“Securities Act”), except to the extent expressly set forth by specific
reference in any such filings.
Important Cautions Regarding Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Forward-looking statements are subject to known and unknown risks and
uncertainties, many of which are beyond our control. We caution you that the
forward-looking statements presented herein are not a guarantee of future
events, and that actual events and results may differ materially from those made
in or suggested by the forward-looking statements contained herein.
Forward-looking statements generally can be identified by the use of
forward-looking terminology such as “may,” “plan,” “will,” “expect,” “intend,”
“estimate,” “anticipate,” “believe” or “continue” or the negative thereof or
variations thereon or similar terminology.
A number of important factors could cause actual events and results to differ
materially from those contained in or implied by the forward-looking statements,
including those factors discussed from time to time in our news releases, public
statements and documents filed by us with the
(the “SEC”) from time to time, including our Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Any
forward-looking statements included herein are made only as of the date hereof,
and we do not undertake any obligation to update or revise such statements to
reflect any changes in expectations, or any changes in events or circumstances
on which those statements are based, except as required by law.
No Offer or Solicitation
This Current Report on Form 8-K is not intended to and shall not constitute an
offer to buy or sell or the solicitation of an offer to buy or sell any
securities, or a solicitation of any vote or approval, nor shall there be any
sale of securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities
laws of any such jurisdiction. No offering of securities shall be made, except
by means of a prospectus meeting the requirements of Section 10 of the
Securities Act.
Additional Information about the Exchange Offer and Where to Find It
In connection with the proposed exchange offer (the “proposed transaction”), RHE
filed with the
that includes a preliminary proxy statement and that also constitutes a
preliminary prospectus. RHE also filed with the
Schedule TO/13E-3 (the “Schedule TO/13E-3”) for the proposed transaction. RHE
intends to file other relevant documents with the
transaction, including the definitive proxy statement/prospectus. The
information in the preliminary proxy statement/prospectus is not complete and
may be changed. This document is not a substitute for the preliminary proxy
statement/prospectus or registration statement or any other document that RHE
may file with the
available) will be mailed to stockholders of RHE. INVESTORS AND SECURITY HOLDERS
ARE URGED TO READ THE REGISTRATION STATEMENT, THE SCHEDULE TO/13E-3, THE
PRELIMINARY PROXY STATEMENT/PROSPECTUS, THE DEFINITIVE PROXY
STATEMENT/PROSPECTUS IF AND WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT
DOCUMENTS THAT MAY BE FILED WITH THE
SUPPLEMENTS TO THOSE DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY
CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT RHE AND THE PROPOSED
TRANSACTION. Investors and security holders are able to obtain free copies of
the registration statement, the Schedule TO/13E-3, the preliminary proxy
statement/prospectus and all other documents containing important information
about RHE and the proposed transaction, once such documents are filed with the
available, through the website maintained by the
statement/prospectus included in the registration statement and additional
copies of the proxy statement/prospectus will be available for free from RHE.
Participants in the Solicitation
RHE and certain of its directors and executive officers may be deemed to be
participants in the solicitation of proxies in respect of the proposed
transaction. Information about the directors and executive officers of RHE,
including a description of their direct or indirect interests, by security
holdings or otherwise, is set forth in RHE’s proxy statement for its 2022 Annual
Meeting of Shareholders, which was filed with the
RHE’s Annual Report on Form 10-K for the fiscal year ended
which was filed with the
additional information regarding the interests of those persons and other
persons who may be deemed participants in the proposed transaction by reading
the preliminary proxy statement/prospectus, including any amendments thereto, as
well as the definitive proxy statement/prospectus if and when it becomes
available and other relevant materials to be filed with the
proposed transaction when such materials become available. Investors should read
the registration statement, the preliminary proxy statement/prospectus, and the
definitive proxy statement/prospectus, if and when it becomes available,
carefully before making any voting or investment decisions. You may obtain free
copies of these documents from RHE using the sources indicated above.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number Description
3.1 Articles of Amendment Establishing Series E Redeemable
Preferred Shares
99.1 Press Release dated February 17, 2023
104 Cover Page Interactive Data File (embedded within Inline XBRL
document)
© Edgar Online, source
link