Tuesday Morning Corporation
Extract: Charter Amended/Restated (Plain English Desc), Bylaws Amended/Restated (Plain English Desc) from a 8-K on 01/04/2021   Download
SEC Document
SEC Filing

In accordance with the terms of the Plan of Reorganization, effective as of December 31, 2020, the Company’s amended and restated certificate of incorporation (the “Amended and Restated Certificate of Incorporation”) and the Company’s amended and restated bylaws (the “Amended and Restated Bylaws”) became effective.

 

Through the Amended and Restated Bylaws, the Company’s prior bylaws were amended to provide that the number of directors that will initially constitute the board of directors at the Effective Date is nine.

 

Through the Amended and Restated Certificate of Incorporation, the Company’s prior certificate of incorporation was amended by (1) increasing the number of authorized shares of common stock from 100 million shares to 200 million shares, (2) adding a provision restricting the issuance of non-voting equity securities as required by Section 1123 of the Bankruptcy Code, and (3) adding a provision designed to assist the Company in preserving certain tax attributes (the “Tax Benefits”), as discussed below.

 

In order to continue to assist the Company in preserving the Tax Benefits, the Amended and Restated Certificate of Incorporation imposes certain restrictions on the transferability and ownership of the Company’s capital stock (the “Ownership Restrictions”). Subject to certain exceptions, the Ownership Restrictions restrict (i) any transfer that would result in any person acquiring 4.5% or more of the Company’s common stock, (ii) any transfer that would result in an increase of the ownership percentage of any person already owning 4.5% or more of the Company’s common stock, or (iii) any transfer during the five-year period following the Effective Date that would result in a decrease of the ownership percentage of any person already owning 4.5% or more of the Company’s common stock. Pursuant to the Amended and Restated Certificate of Incorporation, any transferee receiving shares of common stock that would result in a violation of the Ownership Restrictions will not be recognized as a stockholder of the Company or entitled to any rights of stockholders. The Amended and Restated Certificate of Incorporation allows the Ownership Restrictions to be waived by the Company’s board of directors on a case by case basis. The board of directors has taken action to waive the restrictions with respect to sales of shares acquired in the Rights Offering by the Backstop Party.

 

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The Ownership Restrictions will remain in effect until the earliest of (i) the repeal of Section 382 of the Internal Revenue Code or any successor statute if the board of directors determines the Ownership Restrictions are no longer necessary for preservation of the Tax Benefits, (ii) the beginning of a taxable year in which the board of directors determines no Tax Benefits may be carried forward, or (iii) such other date as shall be established by the board of directors.