issuance under the 2020 ESPP will automatically increase on the first day of each fiscal year, beginning with the fiscal year commencing on January 1, 2021 and continuing for each fiscal
year until, and including the fiscal year commencing on, January 1, 2030, in an amount equal to the lowest of (1) 1,600,000 shares of New Summit Common Stock, (2) one (1) percent of the number of shares of New Summit Common Stock
outstanding on such date, and (3) an amount determined by the New Summit Board.
The foregoing descriptions of the New Summit Plans do not purport to
be complete and are subject to, and qualified in their entirety by, the full text of the 2020 Plan and the 2020 ESPP, which are filed as Exhibits 10.2 and 10.3, respectively, to this Current Report on
Form 8-K and are incorporated herein by reference.
Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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On September 18, 2020, New Summit filed a restated certificate of incorporation (the Restated Certificate) with the Secretary of State of the
State of Delaware in connection with the Effective Time. The New Summit Board and its stockholder previously approved the Restated Certificate to be filed in connection with, and to be effective upon, the Effective Time. The amended and restated
bylaws of New Summit (the Amended and Restated Bylaws), which were previously approved by the New Summit Board, became effective upon the Effective Time.
The following descriptions of the Restated Certificate and the Amended and Restated Bylaws do not purport to be complete and are subject to, and qualified in
their entirety by, the full text of the Restated Certificate and the Amended and Restated Bylaws, copies of which are filed as Exhibit 3.1 and 3.2, respectively, to this Current Report on Form 8-K
and are incorporated herein by reference.
Description of Capital Stock
New Summit is authorized to issue 250,000,000 shares of common stock, $0.01 par value per share and 20,000,000 shares of preferred stock, $0.01 par value per
share.
Common Stock
Under the Restated Certificate,
holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders and do not have cumulative voting rights. An election of directors by the stockholders of New Summit shall be
determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders of common stock are entitled to receive proportionately any dividends as may be declared by the New Summit Board, subject to any preferential
dividend or other rights of outstanding preferred stock.
Upon New Summits dissolution or liquidation, the holders of common stock are entitled to
receive proportionately New Summits net assets available after the payment of all debts and other liabilities and subject to the preferential or other rights of any outstanding preferred stock. Holders of common stock have no preemptive,
subscription, redemption or conversion rights. New Summits outstanding shares of common stock are fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred stock which New Summit may designate and issue in the future.
Preferred
Stock
Under the Restated Certificate, the New Summit Board is authorized to issue shares of preferred stock in one or more series without stockholder
approval. The New Summit Board has the discretion to determine the designations, rights, preferences, privileges, qualifications, limitations and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges
and liquidation preferences, of each series of preferred stock.
The purpose of authorizing the New Summit Board to issue preferred stock and determine
its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes,
could have the effect of making it more difficult for a third party to acquire, or could discourage a third party from acquiring, a majority of New Summits outstanding voting stock. New Summit has no present plans to issue any shares of
preferred stock, and no shares of preferred stock are currently outstanding.