As
filed with the Securities and Exchange Commission on June 28, 2023
Registration
No. 333-269750
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective
Amendment No. 1
to
Form
S-4
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REGIONAL
HEALTH PROPERTIES, INC.
(Exact
name of registrant as specified in its charter)
| Georgia |
|
6519 |
|
81-5166048 |
| (State
or other jurisdiction of |
|
(Primary
Standard Industrial |
|
(I.R.S.
Employer |
| incorporation
or organization) |
|
Classification
Code Number) |
|
Identification
Number) |
454
Satellite Boulevard NW, Suite 100
Suwanee,
Georgia 30024
(678) 869-5116
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Brent
Morrison
Chief Executive Officer and President
Regional
Health Properties, Inc.
454 Satellite Boulevard NW, Suite 100
Suwanee, Georgia 30024
(678) 869-5116
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Joshua
Davidson
Clinton W. Rancher
Baker Botts L.L.P.
910 Louisiana Street
Houston, Texas 77002
(713) 229-1234
Approximate
date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes
effective.
If
the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. ☐
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒
Registration No. 333-269750
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer |
☐ |
|
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
|
Smaller
reporting company |
☒ |
| |
|
|
Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If
applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
| Exchange
Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
☐ |
| Exchange
Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
☐ |
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 1 to Form S-4 amends the Registration Statement on Form S-4 (Reg. No. 333-269750) of Regional Health Properties,
Inc., a Georgia corporation (the “Registrant”), as amended prior to the date hereof (the “Registration Statement”),
which was declared effective by the Securities and Exchange Commission on May 25, 2023.
This
Post-Effective Amendment No. 1 is being filed as an exhibit-only filing for the purpose of (i) replacing Exhibit 5.1: Legal Opinion
of Troutman Pepper Hamilton Sanders LLP as to the legality of the securities being registered, previously filed with the
Registration Statement, with an unqualified version of such legal opinion in accordance with Staff Legal Bulletin No. 19, (ii)
adding Exhibit 3.4: Articles of Amendment to Amended and Restated Articles of Incorporation of Regional Health Properties, Inc.,
effective June 27, 2023, and Exhibit 3.6: Amendment No. 1 to Amended and Restated Bylaws of Regional Health Properties, Inc.,
effective June 27, 2023, and (iii) updating Item 21 of Part II of the Registration Statement in connection therewith. The
Registration Statement is hereby amended, as appropriate, to reflect the replacement of Exhibit 5.1 and the addition of Exhibits 3.4 and 3.6. This Post-Effective Amendment
No. 1 shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(d) under the
Securities Act of 1933, as amended.
Item
21. Exhibits and Financial Statement Schedules.
(a)
Exhibit List
| Exhibit
No. |
|
Description
|
| |
|
|
| 3.1 |
|
Amended and Restated Articles of Incorporation of Regional Health Properties, Inc., effective September 21, 2017 (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K12B filed on October 2, 2017) |
| |
|
|
| 3.2 |
|
Articles of Amendment to Amended and Restated Articles of Incorporation of Regional Health Properties, Inc., effective December 31, 2018 (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on December 28, 2018) |
| |
|
|
| 3.3 |
|
Articles of Amendment Establishing Series E Redeemable Preferred Shares of Regional Health Properties, Inc., effective February 14, 2023 (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on February 17, 2023) |
| |
|
|
| 3.4† |
|
Articles of Amendment to Amended and Restated Articles of Incorporation of Regional Health Properties, Inc., effective June 27, 2023 |
| |
|
|
| 3.5 |
|
Amended and Restated Bylaws of Regional Health Properties, Inc., effective September 21, 2017 (incorporated by reference to Exhibit 3.3 of the Registrant’s Current Report on Form 8-K12B filed on October 2, 2017) |
| |
|
|
| 3.6† |
|
Amendment No. 1 to Amended and Restated Bylaws of Regional Health Properties, Inc., effective June 27, 2023 |
| |
|
|
| 4.1 |
|
Description of Regional Health Properties, Inc. Capital Stock (incorporated by reference to Exhibit 4.2 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 4.2 |
|
Form of Common Stock Certificate of Regional Health Properties, Inc. (incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K12B filed on October 2, 2017) |
| |
|
|
| 4.3* |
|
Warrant to Purchase 70,000 Shares of Common Stock, dated May 15, 2013, issued by AdCare Health Systems, Inc. to Ronald W. Fleming (incorporated by reference to Exhibit 4.23 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2012) |
| |
|
|
| 5.1† |
|
Legal Opinion of Troutman Pepper Hamilton Sanders LLP as to the legality of the securities being registered |
| |
|
|
| 8.1+ |
|
Legal Opinion of Baker Botts L.L.P. relating to tax matters |
| |
|
|
| 10.1* |
|
Regional Health Properties, Inc. 2020 Equity Incentive Plan (incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed December 17, 2020) |
| |
|
|
| 10.2* |
|
Form of Restricted Common Stock Agreement – Non Employee Director (2020 Equity Plan) (incorporated by reference to Exhibit 4.7 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021) |
| |
|
|
| 10.3* |
|
Form of Restricted Common Stock Agreement – Employee (2020 Equity Plan) (incorporated by reference to Exhibit 4.8 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021) |
| |
|
|
| 10.4* |
|
Form of Incentive Stock Option Award Agreement between Regional Health Properties, Inc. and participant (2020 Equity Plan) (incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed on January 6, 2022) |
| |
|
|
| 10.5* |
|
Form of Non-Qualified Stock Option Award Agreement between Regional Health Properties, Inc. and participant (2020 Equity Plan) (incorporated by reference to Exhibit 10.1(d) of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022) |
| |
|
|
| 10.6* |
|
Employment Agreement, dated July 1, 2021, by and among Regional Health Properties, Inc. and Brent Morrison (incorporated by reference to Exhibit 10.229 of Amendment No. 1 to the Registrant’s Registration Statement on Form S-4 filed on July 2, 2021 (File No. 333-256667)). |
| |
|
|
| 10.7* |
|
Letter Agreement, dated October 1, 2013, among AdCare Health Systems, Inc., Park City Capital, LLC and Michael J. Fox (incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed on October 18, 2013) |
| |
|
|
| 10.8* |
|
Consulting Agreement, dated as of August 16, 2020, by and between E. Clinton Cain and Regional Health Properties, Inc. (incorporated by reference to Exhibit 10.7 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2020) |
| 10.9 |
|
Mt. Kenn Property Holdings, LLC Deed to Secure Debt, Assignment of Rents and Security Agreement dated April 29, 2011 (incorporated by reference to Exhibit 10.4 of the Registrant’s Current Report on Form 8-K filed on May 5, 2011) |
| |
|
|
| 10.10 |
|
Form of Promissory Note, issued by Mount Trace Nursing ADK, LLC (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed on June 16, 2011) |
| |
|
|
| 10.11 |
|
Loan Agreement, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the SBA Loan #47671350-10 (incorporated by reference to Exhibit 10.42 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.12 |
|
Term Note, dated July 27, 2011, made by Erin Property Holdings, LLC in favor of Bank of Atlanta (incorporated by reference to Exhibit 10.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.13 |
|
Note and Loan Modification Agreement, dated as of May 1, 2020, by and between Erin Property Holdings, LLC and Regional Health Property, Inc. and Cadence Bank, NA (incorporated by reference to Exhibit 4.14 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020) |
| |
|
|
| 10.14 |
|
Note, dated July 27, 2011, made by Erin Property Holdings, LLC, in favor of Bank of Atlanta, with respect to the SBA Loan (incorporated by reference to Exhibit 10.2 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.15 |
|
Term Loan Agreement, dated July 27, 2011, among Erin Property Holdings, LLC, Erin Nursing, LLC, AdCare Health Systems, Inc. and Bank of Atlanta, with respect to the USDA Loan (incorporated by reference to Exhibit 10.3 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.16 |
|
Loan Agreement, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the SBA Loan (incorporated by reference to Exhibit 10.4 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.17 |
|
Deed to Secure Debt and Security Agreement, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the USDA Loan (incorporated by reference to Exhibit 10.5 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.18 |
|
Deed to Secure Debt and Security Agreement, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the SBA Loan (incorporated by reference to Exhibit 10.6 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.19 |
|
Assignment of Leases and Rents, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the USDA Loan (incorporated by reference to Exhibit 10.7 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.20 |
|
Assignment of Leases and Rents, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the SBA Loan (incorporated by reference to Exhibit 10.8 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.21 |
|
Indemnity Agreement, Regarding Hazardous Materials, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the USDA Loan (incorporated by reference to Exhibit 10.9 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.22 |
|
Indemnity Agreement, Regarding Hazardous Materials, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the USDA Loan (incorporated by reference to Exhibit 10.10 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.23 |
|
Security Agreement, dated July 27, 2011, between Erin Property Holdings, LLC, Erin Nursing, LLC and Bank of Atlanta, with respect to the USDA Loan (incorporated by reference to Exhibit 10.11 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.24 |
|
Security Agreement, dated July 27, 2011, between Erin Property Holdings, LLC, Erin Nursing, LLC and Bank of Atlanta, with respect to the SBA Loan (incorporated by reference to Exhibit 10.12 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.25 |
|
Guaranty, dated July 27, 2011, made by Erin Nursing, LLC, with respect to the USDA Loan (incorporated by reference to Exhibit 10.13 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.26 |
|
Guaranty, dated July 27, 2011, made by AdCare Health Systems, Inc., with respect to the USDA Loan (incorporated by reference to Exhibit 10.14 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.27 |
|
Unconditional Guaranty Business and Industry Guarantee Loan Program, dated July 27, 2011, made by Erin Nursing, LLC, with respect to the USDA Loan (incorporated by reference to Exhibit 10.15 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| 10.28 |
|
Unconditional Guarantee Business and Industry Guarantee Loan Program, dated July 27, 2011, made by AdCare Health Systems, Inc., with respect to the USDA Loan (incorporated by reference to Exhibit 10.16 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.29 |
|
Unconditional Guarantee, dated July 27, 2011, made by Erin Nursing, LLC, with respect to the SBA Loan (incorporated by reference to Exhibit 10.17 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.30 |
|
Unconditional Guarantee, dated July 27, 2011, made by AdCare Health Systems, Inc., with respect to the SBA Loan (incorporated by reference to Exhibit 10.18 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.31 |
|
Escrow Agreement, dated July 27, 2011, between Erin Property Holdings, LLC, Bank of Atlanta, and Bank of Atlanta as Escrow Agent, with respect to the USDA Loan and the SBA Loan (incorporated by reference to Exhibit 10.19 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.32 |
|
Loan Agreement, dated July 27, 2011, between Erin Property Holdings, LLC and Bank of Atlanta, with respect to the SBA Loan #47671350-10 (incorporated by reference to Exhibit 10.2 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2011) |
| |
|
|
| 10.33 |
|
Unconditional Guarantee, dated September 6, 2011, issued by CP Nursing, LLC in favor of Economic Development Corporation of Fulton County (incorporated by reference to Exhibit 10.48 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011) |
| |
|
|
| 10.34 |
|
Unconditional Guarantee, dated September 6, 2011, issued by Hearth and Home of Ohio, Inc. in favor of Economic Development Corporation of Fulton County (incorporated by reference to Exhibit 10.49 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011) |
| |
|
|
| 10.35 |
|
Cognovit Promissory Note, dated as of January 1, 2012, issued by Eaglewood Property Holdings, LLC and Eaglewood Village, LLC in favor of Eaglewood Villa, Ltd. in the amount of $500,000 (incorporated by reference to Exhibit 10.141 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) |
| |
|
|
| 10.36 |
|
Cognovit Promissory Note, dated as of January 1, 2012, issued by Eaglewood Property Holdings, LLC and Eaglewood Village, LLC in favor of Eaglewood Villa, Ltd. in the amount of $4,500,000 (incorporated by reference to Exhibit 10.142 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) |
| |
|
|
| 10.37 |
|
Guaranty Agreement, dated as of December 30, 2011, executed by AdCare Health Systems, Inc. and AdCare Property Holdings, LLC in favor of Eaglewood Villa, Ltd (incorporated by reference to Exhibit 10.143 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) |
| |
|
|
| 10.38 |
|
Lease Agreement, dated August 1, 2010, between William M. Foster and ADK Georgia, LLC (incorporated by reference to Exhibit 10.155 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) |
| |
|
|
| 10.39 |
|
First Amendment to Lease, dated August 31, 2010, between William M. Foster and ADK Georgia, LLC (incorporated by reference to Exhibit 10.156 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) |
| |
|
|
| 10.40 |
|
Second Amendment to Lease, dated as of August 14, 2015, between William M. Foster and ADK Georgia, LLC (incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed on August 18, 2015) |
| |
|
|
| 10.41 |
|
Lease Termination Agreement Spring Valley, dated as of December 30, 2022, among Regional Health Properties, Inc., ADK Georgia, LLC and Spring Valley, LLC (incorporated by reference to Exhibit 10.33(c) of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022) |
| |
|
|
| 10.42 |
|
Guaranty Agreement, dated as of June 1, 2010, entered into by AdCare Health Systems, Inc. to and for the benefit of Bank of Oklahoma, N.A. (incorporated by reference to Exhibit 10.159 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2011) |
| 10.43 |
|
Loan Agreement, dated as of April 12, 2012, between the City of Springfield, Ohio and Eaglewood Property Holdings, LLC (incorporated by reference to Exhibit 10.18 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012) |
| |
|
|
| 10.44 |
|
Guaranty Agreement, dated as of April 12, 2012, made and entered into by AdCare Health Systems, Inc., to and for the benefit of BOKF, NA dba Bank of Oklahoma (incorporated by reference to Exhibit 10.19 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012) |
| |
|
|
| 10.45 |
|
Land Use Restriction Agreement, dated as of April 12, 2012, by and between BOKF, NA dba Bank of Oklahoma and Eaglewood Property Holdings, LLC (incorporated by reference to Exhibit 10.20 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012) |
| |
|
|
| 10.46 |
|
Open-End Mortgage, Assignment of Leases and Security Agreement, dated April 12, 2012, from Eaglewood Property Holdings, LLC to BOKF, NA dba Bank of Oklahoma (incorporated by reference to Exhibit 10.21 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012) |
| |
|
|
| 10.47 |
|
Securities Purchase Agreement, dated as of June 28, 2012, between AdCare Health Systems, Inc. and the Buyers signatory thereto (incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed on July 5, 2012) |
| |
|
|
| 10.48 |
|
Bond Purchase Agreement, dated April 10, 2012, among Lawson Financial Corporation, The City of Springfield, Ohio and Eaglewood Property Holdings, LLC (incorporated by reference to Exhibit 10.40 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012) |
| |
|
|
| 10.49 |
|
Secured Loan Agreement, dated December 28, 2012, by and among Keybank National Association and the subsidiaries of AdCare Health Systems, Inc. named therein (incorporated by reference to Exhibit 10.263 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2012) |
| |
|
|
| 10.50 |
|
Healthcare Facility Note, dated December 1, 2014, by and among Mt. Kenn Property Holdings, LLC and KeyBank National Association (incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed on December 22, 2014) |
| |
|
|
| 10.51 |
|
Healthcare Deed to Secure Debt, Security Agreement and Assignment of Rents, dated December 1, 2014, by and among Mt. Kenn Property Holdings, LLC and KeyBank National Association (incorporated by reference to Exhibit 99.3 of the Registrant’s Current Report on Form 8-K filed on December 22, 2014) |
| |
|
|
| 10.52 |
|
Healthcare Regulatory Agreement, dated December 1, 2014, by and among Mt. Kenn Property Holdings, LLC, its successors, heirs, and assigns (jointly and severally) and the U.S. Department of Housing and Urban Development (incorporated by reference to Exhibit 99.4 of the Registrant’s Current Report on Form 8-K filed on December 22, 2014) |
| |
|
|
| 10.53 |
|
Regulatory Agreement and Mortgage Note dated July 29, 2008, by and between Hearth & Care of Greenfield and Red Mortgage Capital, Inc. (incorporated by reference to Exhibit 10.31 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2008) |
| |
|
|
| 10.54 |
|
Modification of Mortgage Note Agreement dated as of October 1, 2014, by and between Hearth & Care of Greenfield, LLC. and Red Mortgage Capital, Inc (incorporated by reference to Exhibit 10.359 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014) |
| |
|
|
| 10.55 |
|
Security Instrument, Mortgage & Deed of Trust, dated September 24, 2014, by and between Glenvue H&R Property Holdings, LLC and Housing & Healthcare Finance, LLC (incorporated by reference to Exhibit 10.24 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014) |
| |
|
|
| 10.56 |
|
Healthcare Regulatory Agreement - Borrower, dated September 24, 2014, by and between Woodland Manor Property Holdings, LLC and The U.S. Department of Housing and Urban Development (incorporated by reference to Exhibit 10.25 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014) |
| 10.57 |
|
Healthcare Regulatory Agreement - Borrower, dated September 24, 2014, by and between Glenvue H&R Property Holdings, LLC and U.S. Department of Housing and Urban Development (incorporated by reference to Exhibit 10.26 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014) |
| |
|
|
| 10.58 |
|
Healthcare Facility Note, dated September 24, 2014, by and between Woodland Manor Property Holdings, LLC and Housing & Healthcare Finance, LLC (incorporated by reference to Exhibit 10.27 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014) |
| |
|
|
| 10.59 |
|
Healthcare Facility Note, dated September 24, 2014, by and between Glenvue H&R Property Holdings, LLC and Housing & Healthcare Finance, LLC (incorporated by reference to Exhibit 10.28 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014) |
| |
|
|
| 10.60 |
|
Lease Agreement, dated February 27, 2015, by and between Sumter Valley Property Holdings, LLC and Blue Ridge of Sumter LLC (incorporated by reference to Exhibit 10.410 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014) |
| |
|
|
| 10.61 |
|
First Amendment to Lease Agreement, dated March 20, 2015, by and between Sumter Valley Property Holdings, LLC and Blue Ridge of Sumter, LLC (incorporated by reference to Exhibit 10.411 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014) |
| |
|
|
| 10.62 |
|
Lease Agreement, dated September 22, 2014, by and between Coosa Nursing ADK, LLC, and C.R. of Coosa Valley, LLC (incorporated by reference to Exhibit 10.415 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014) |
| |
|
|
| 10.63 |
|
First Amendment to Lease Agreement, dated November 21, 2014, by and between Coosa Nursing ADK, LLC, and C.R. of Coosa Valley, LLC (incorporated by reference to Exhibit 10.52(a) of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022) |
| |
|
|
| 10.64 |
|
Second Amendment to Lease Agreement, dated September 14, 2015, by and between Coosa Nursing ADK, LLC and C.R. of Coosa Valley, LLC (incorporated by reference to Exhibit 10.124 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015) |
| |
|
|
| 10.65 |
|
Sublease Agreement, dated May 1, 2015, by and between QC Nursing, LLC and Southwest LTC-Quail Creek, LLC (incorporated by reference to Exhibit 10.84 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015) |
| |
|
|
| 10.66 |
|
Sublease Agreement, dated July 1, 2015, by and between 2014 HUD Master Tenant, LLC and C.R. of Glenvue, LLC (incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed on July 7, 2015) |
| |
|
|
| 10.67 |
|
First Amendment to Sublease Agreement, dated August 14, 2015, by and between 2014 HUD Master Tenant, LLC and C.R. of Glenvue, LLC (incorporated by reference to Exhibit 10.126 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015) |
| |
|
|
| 10.68 |
|
Sublease Agreement, dated August 1, 2015, by and between 2014 HUD Master Tenant, LLC and EW SNF, LLC (incorporated by reference to Exhibit 99.6 of the Registrant’s Current Report on Form 8-K filed on August 5, 2015) |
| |
|
|
| 10.69 |
|
Lease Inducement Fee Agreement, dated August 1, 2015, by and between the AdCare Health Systems, Inc. and PWW Healthcare, LLC, PV SNF, LLC, HC SNF, LLC, EW SNF, LLC, and EW ALF, LLC (incorporated by reference to Exhibit 99.7 of the Registrant’s Current Report on Form 8-K filed on August 5, 2015) |
| |
|
|
| 10.70 |
|
Lease Guaranty made by AdCare Health Systems, Inc. for the benefit of William M. Foster, effective August 14, 2015 (incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed on August 18, 2015) |
| 10.71 |
|
Sublease Agreement, dated October 1, 2015, by and between KB HUD Master Tenant 2014, LLC, and C.R. of Autumn Breeze, LLC (incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed on October 6, 2015) |
| |
|
|
| 10.72 |
|
Master Sublease Agreement, dated November 3, 2015, by and among ADK Georgia, LLC, and Jeffersonville Healthcare & Rehab, LLC, Oceanside Healthcare & Rehab, LLC, and Savannah Beach Healthcare & Rehab, LLC (incorporated by reference to Exhibit 10.141 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015) |
| |
|
|
| 10.73 |
|
Replacement Promissory Note, dated November 1, 2015, by and between New Beginnings Care, LLC, Jeffersonville Healthcare & Rehab, LLC, Oceanside Healthcare & Rehab, LLC, and Savannah Beach Healthcare & Rehab, LLC, and AdCare Health Systems, Inc. (incorporated by reference to Exhibit 10.142 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015) |
| |
|
|
| 10.74 |
|
Loan Agreement, dated May 1, 2017, between Meadowood Property Holdings, LLC and the Exchange Bank of Alabama in the original amount of $4.1 million (incorporated by reference to Exhibit 10.3 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2017) |
| |
|
|
| 10.75 |
|
Extension and Modification Agreement, dated as of October 1, 2021, by and between Meadowood Holdings Property, LLC and the Exchange Bank of Alabama (incorporated by reference to Exhibit 4.18 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2021) |
| |
|
|
| 10.76 |
|
Guarantee Issued May 1, 2017, by and among AdCare Health Systems Inc., Regional Health Properties Inc., and Exchange Bank of Alabama (incorporated by reference to Exhibit 10.62 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022) |
| |
|
|
| 10.77 |
|
Joinder and First Amendment to Guarantee Issued May 1, 2017, dated September 29, 2017, by and among AdCare Health Systems Inc., Regional Health Properties Inc., and Exchange Bank of Alabama (incorporated by reference to Exhibit 10.10 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017) |
| |
|
|
| 10.78 |
|
Affirmation and Assumption of Loan Documents, Limited Guarantees and Security Agreements Issued September 29, 2017, by and between Regional Health Properties, Inc., and Red Mortgage (incorporated by reference to Exhibit 10.11 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017) |
| |
|
|
| 10.79 |
|
Sublease Agreement, dated as of November 30, 2018, by and between Regional Health Properties, Inc. and Miami COV SNF, Inc. (incorporated by reference to Exhibit 10.206 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.80 |
|
Sublease Agreement, dated as of November 30, 2018, by and between RMC HUD Master Tenant, LLC and Greenfield SNF, Inc. (incorporated by reference to Exhibit 10.207 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.81 |
|
Sublease Agreement, dated as of November 30, 2018, by and between RMC HUD Master Tenant, LLC and Sidney SNF, Inc. (incorporated by reference to Exhibit 10.208 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.82 |
|
Sublease Agreement, dated as of November 30, 2018, by and between Eaglewood Village, LLC and Springfield Clark ALF, Inc. (incorporated by reference to Exhibit 10.209 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.83 |
|
Sublease Agreement, dated as of November 30, 2018, by and between 2014 HUD Master Tenant, LLC and Springfield SNF, Inc. (incorporated by reference to Exhibit 10.210 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.84 |
|
Guaranty, dated as of December 1, 2018, by and between Regional Health Properties, Inc. and Miami COV SNF, Inc., Greenfield SNF, Inc., Sidney SNF, Inc., Springfield Clark ALF Inc. and Springfield SNF, Inc. (incorporated by reference to Exhibit 10.211 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| 10.85 |
|
Forbearance Agreement, dated as of January 11, 2019, by and between Covington Realty, LLC and Regional Health Properties, Inc. (incorporated by reference to Exhibit 10.212 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.86 |
|
Lease Agreement, dated as of February 28, 2019, by and between Mountain Trace Nursing ADK, LLC and Vero Health X, LLC (incorporated by reference to Exhibit 10.216 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.87 |
|
Settlement Agreement and Release, dated as of March 13, 2019, by and between Regional Health Properties, Inc. and Chapter 7 Trustee (incorporated by reference to Exhibit 10.219 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018) |
| |
|
|
| 10.88 |
|
Coosa Nursing ADK, LLC Loan Agreement dated September 30, 2010 (incorporated by reference to Exhibit 10.1 of the Registrant’s Form 8-K filed on October 6, 2010) |
| |
|
|
| 10.89 |
|
Coosa Nursing ADK, LLC Secured Promissory Note dated September 30, 2010 (incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K filed on October 6, 2010) |
| |
|
|
| 10.90 |
|
Note Modification Agreement, dated as of May 1, 2020, by and between Coosa Nursing ADK, LLC and Metro City Bank (incorporated by reference to Exhibit 4.12 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020) |
| |
|
|
| 10.91 |
|
Term Loan Agreement dated as of January 24, 2011, by and between Mountain Trace Nursing ADK, LLC and Community Bank & Trust - West Georgia (incorporated by reference to Exhibit 10.75 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022) |
| |
|
|
| 10.92 |
|
Extension Agreement, dated as of July 15, 2020, by and between Mountain Trace Nursing ADK, LLC and Community Bank & Trust – West Georgia (incorporated by reference to Exhibit 4.13 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2020) |
| |
|
|
| 10.93 |
|
Agreement Regarding Lease and Note, dated as of August 27, 2020, by and between OS Tybee, LLC, SB Tybee, LLC, JV Jeffersonville, LLC and Regional Health Property, Inc. (incorporated by reference to Exhibit 10.6 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2020) |
| |
|
|
| 10.94 |
|
Lease, dated as of January 1, 2021, by and between ADK Georgia, LLC and PS Operator, LLC (incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed on January 7, 2021) |
| |
|
|
| 10.95 |
|
Management Consulting Services Agreement, dated as of January 1, 2021, by and between Vero Health Management, LLC, and Tara Operator, LLC (incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed on January 7, 2021) |
| |
|
|
| 10.96 |
|
Agreement Regarding Leases, dated as of December 1, 2020, by and between Regional Health Properties, Inc., and 3223 Falligant Avenue Associates, L.P., 3460 Powder Springs Road Associates, L.P., Wellington Healthcare Services II, L.P. and Mansell Court Associates LLC (incorporated by reference to Exhibit 10.247 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020) |
| |
|
|
| 10.97 |
|
Promissory Note, dated as of September 30, 2021, by and between Coosa Nursing, LLC and the Exchange Bank of Alabama (incorporated by reference to Exhibit 4.17 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2021) |
| |
|
|
| 10.98 |
|
Second Renewal Amended and Restated Promissory Note, dated as of August 17, 2021, by and between Regional Health Properties, Inc. and KeyBank National Association (incorporated by reference to Exhibit 4.19 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2021) |
| |
|
|
| 10.99 |
|
Management Agreement, dated as of September 22, 2021, by and between Peach Health Group, LLC and Tara Operator, LLC (incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed on September 27, 2021) |
| |
|
|
| 10.100* |
|
Outside Director Compensation Package (incorporated by reference to Exhibit 10.83 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022) |
| * | Identifies
a management contract or compensatory plan or arrangement. |
| | | |
| † | Filed
herewith. |
| | | |
| + | Previously
filed. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form S-4 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Suwanee, State of Georgia, on June 28, 2023.
| |
REGIONAL
HEALTH PROPERTIES, INC.
|
| |
|
| |
By: |
/s/
Brent Morrison |
| |
|
Brent
Morrison |
| |
|
Chief
Executive Officer and President |
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title
|
|
Date
|
| |
|
|
|
|
/s/
Brent Morrison
|
|
Director,
Chief Executive Officer and President
(Principal
Executive Officer) |
|
June
28, 2023 |
| Brent
Morrison |
|
|
|
|
| |
|
|
|
|
/s/
Paul J. O’Sullivan
|
|
Senior
Vice
President
(Principal
Financial Officer and Principal Accounting Officer) |
|
June
28, 2023 |
| Paul
J. O’Sullivan |
|
|
|
|
| |
|
|
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|
*
|
|
Director
|
|
June
28, 2023 |
| Michael
J. Fox |
|
|
|
|
| |
|
|
|
|
*
|
|
Director
|
|
June
28, 2023 |
| Kenneth
W. Taylor |
|
|
|
|
| |
|
|
|
|
*
|
|
Director
|
|
June
28, 2023 |
| David
A. Tenwick |
|
|
|
|
| *By: |
/s/
Brent Morrison |
|
| |
Brent
Morrison, Attorney-in-Fact
|
|
Exhibit
3.4
ARTICLES
OF AMENDMENT
TO
THE
AMENDED
AND RESTATED ARTICLES OF INCORPORATION OF
REGIONAL
HEALTH PROPERTIES, INC.
Regional
Health Properties, Inc., a Georgia corporation (the “Corporation”), acting pursuant to Section 14-2-602 and Section
14-2-1006 of the Georgia Business Corporation Code (the “GBCC”), does hereby submit the following Articles of Amendment
(“Articles of Amendment”) to the Amended and Restated Articles of Incorporation of the Corporation, as amended (“Amended
and Restated Articles”).
FIRST:
The name of the Corporation is Regional Health Properties, Inc.
SECOND:
The following amendments to Section 2.1 of the Amended and Restated Articles were duly adopted by the Board of Directors of the Corporation
(“Board of Directors”) on February 13, 2023, and were duly adopted by the shareholders holding the Corporation’s
10.875% Series A Cumulative Redeemable Preferred Shares and the shareholders holding the Corporation’s common stock and the Corporation’s
Series E Redeemable Preferred Shares in accordance with the provisions of Section 14-2-1003 of the GBCC on June 27, 2023. Effective upon
the filing hereof, Section 2.1 of the Amended and Restated Articles is hereby amended and restated in its entirety as follows:
“2.1
Authorized Shares. The Corporation shall have authority to issue Sixty One Million (61,000,000) shares of stock of which: (a) Fifty-five
Million (55,000,000) shares shall be designated “Common Stock,” no par value per share; and (b) Six Million (6,000,000) shares
shall be designated “Preferred Stock,” no par value per share, of which 3,000,000 of such shares of Preferred Stock have
been designated as Series A Preferred Shares (as defined in Article III) and have the preferences, limitations and relative rights set
forth in Article III and 2,811,535 of such shares of Preferred Stock have been designated as Series B Preferred Shares (as defined in
Article X) and have the preferences, limitations and relative rights set forth in Article X. The Corporation also shall have the authority
to issue fractions of a share of Common Stock and Preferred Stock, as provided in the Official Code of Georgia Annotated. Shares that
are reacquired by the Corporation shall be classified as treasury shares unless the terms of such stock provide to the contrary.
The
designations and preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications,
and terms and conditions of redemption of the shares of stock are as follows:”
THIRD:
The following amendments to the Amended and Restated Articles to provide for the preferences, limitations and relative rights of
the Corporation’s 12.5% Series B Cumulative Redeemable Preferred Shares, to be set forth in a new Article X thereof, were duly
adopted by the Board of Directors on February 13, 2023 and April 27, 2023, and were duly adopted by the shareholders holding the Corporation’s
10.875% Series A Cumulative Redeemable Preferred Shares in accordance with the provisions of Section 14-2-1003 of the GBCC on June 27,
2023. Effective upon the filing hereof, the Amended and Restated Articles are amended to add a new Article X, which is set forth on Exhibit
A attached hereto.
FOURTH:
All other provisions of the Amended and Restated Articles shall remain in full force and effect.
Exhibit
A
ARTICLE
X
12.5%
Series B Cumulative Redeemable Preferred Shares
10.1
Number of Shares and Designations. The Board of Directors has established in accordance with Section 14-2-602 of the Official Code
of Georgia Annotated, and the Corporation is authorized to issue, a series of Preferred Stock designated as the 12.5% Series B Cumulative
Redeemable Preferred Shares (the “Series B Preferred Shares”), no par value per share. The number
of shares that shall constitute such series shall be 2,811,535, which number may be increased or decreased by the Board of Directors,
at any time and from time to time, in the manner provided in Section 14-2-602 of the Official Code of Georgia Annotated, subject to applicable
rights of the holders of Series A Preferred Shares. In the case the number of shares constituting the Series B Preferred Shares is decreased
or such series of shares is eliminated, the shares that are the subject of the decrease or compose the series being eliminated shall
be retired and restored to the status of authorized but unissued shares of undesignated Preferred Stock.
The
Series B Preferred Shares shall have the rights and preferences set forth in this Article X.
10.2
Definitions. For purposes of this Article X, the following terms shall have the meanings indicated:
(a)
“Board of Directors” shall mean the Board of Directors of the Corporation or any committee of members of the
Board of Directors authorized by such Board of Directors to perform any of its responsibilities with respect to the Series B Preferred
Shares.
(b)
“Business Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered
banking institutions in New York, New York are not required to be open.
(c)
“Call Date” shall mean the date fixed for redemption of the Series B Preferred Shares and specified in the notice
to holders required under paragraph (g) of Section 10.5 as the Call Date.
(d)
A “Change of Control” is deemed to occur when, after the Issue Date, the following has occurred:
(i)
the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange
Act, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases,
mergers or other acquisition transactions of stock of the Corporation entitling that person to exercise more than 50% of the total voting
power of all stock of the Corporation entitled to vote generally in the election of directors of the Corporation (except that such person
will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent condition).
(e)
“Common Shares” shall mean the shares of Common Stock, no par value per share, of the Corporation.
(f)
“Correction Event” shall mean: (i) with respect to any Delisting Event, such time as the Series B Preferred
Shares are listed or quoted (in the event of a failure to obtain a National Market Listing) or once again listed or quoted (in the event
of a failure to maintain a National Market Listing) pursuant to a National Market Listing; (ii) with respect to any Dividend Default,
such time as the Corporation has paid all accumulated accrued and unpaid dividends on the Series B Preferred Shares in full in cash (or
declared such dividends and a sum of cash sufficient for the payment thereof is set apart for payment); and (iii) with respect to any
Cumulative Redemption Default, such time as the Corporation has redeemed, repurchased or otherwise acquired the applicable Cumulative
Redemption Amount.
(g)
“Cumulative Redemption Amount” shall mean, in the aggregate, (i) 800,000 Series B Preferred Shares as of the date
that is 12 months after the Issue Date, (ii) 1,400,000 Series B Preferred Shares as of the date that is 24 months after the Issue Date,
(iii) 1,800,000 Series B Preferred Shares as of the date that is 36 months after the Issue Date and (iv) 2,100,000 Series B Preferred
Shares as of the date that is 48 months after the Issue Date (or, in each case, such smaller number of Series B Preferred Shares as is
then outstanding and with each such number of Series B Preferred Shares being cumulative of the number of Series B Preferred Shares redeemed
in previous months).
(h)
“Cumulative Redemption Deadline” shall mean, with respect to any Cumulative Redemption Amount, the date that is 12
months, 24 months, 36 months or 48 months, as applicable, after the Issue Date.
(i)
“Cumulative Redemption Default” shall have the meaning set forth in paragraph (d) of Section 10.5.
(j)
“Cumulative Redemption Measurement Date” shall mean, with respect to any Cumulative Redemption Amount, the date that
is 90 days prior to the applicable Cumulative Redemption Deadline.
(k)
“Delisting Event” shall have the meaning set forth in paragraph (d) of Section 10.3.
(l)
“Delisting Penalty Right” shall have the meaning set forth in paragraph (c) of Section 10.7.
(m)
“Director Independence Requirement” shall have the meaning set forth in paragraph (f) of Section 10.7.
(n)
“Dividend Default” shall have the meaning set forth in paragraph (c) of Section 10.3.
(o)
“Dividend Payment Date” shall have the meaning set forth in paragraph (a) of Section 10.3.
(p)
“Dividend Penalty Right” shall have the meaning set forth in paragraph (b) of Section 10.7.
(q)
“Dividend Periods” shall mean quarterly dividend periods commencing on January 1, April 1, July 1 and October
1 of each year and ending on and including the day preceding the first day of the next succeeding Dividend Period; provided, however,
that the initial Dividend Period shall commence on and include July 1, 2027 and shall end on and include the day preceding the first
day of the next succeeding Dividend Period. For the avoidance of doubt, no dividends shall be paid or accrue prior to the initial Divided
Period.
(r)
“Dividend Rate” shall mean 12.5% per annum.
(s)
“Dividend Record Date” shall have the meaning set forth in paragraph (a) of Section 10.3.
(t)
“Elected Preferred Nominee” shall have the meaning set forth in paragraph (h) of Section 10.8.
(u)
“Election Effective Time” shall have the meaning set forth in paragraph (h) of Section 10.8.
(v)
“Eligible Preferred Holder” shall have the meaning set forth in paragraph (a) of Section 10.8.
(w)
“Event” shall have the meaning set forth in paragraph (h) of Section 10.7.
(x)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(y)
“Final Series B Preferred Shares” shall mean the last 200,000 Series B Preferred Shares outstanding.
(z)
“Issue Date” shall mean the original date of issuance of the Series B Preferred Shares.
(aa)
“Junior Shares” shall have the meaning set forth in paragraph (c) of Section 10.6.
(bb)
“Liquidation Event” shall have the meaning set forth in paragraph (a) of Section 10.4.
(cc)
“Liquidation Preference” shall mean, with respect to the Series B Preferred Shares, (i) from and including the Issue
Date to, but excluding, the date that is 12 months after the Issue Date, $10.00 per Series B Preferred Share, (ii) from and including
the date that is 12 months after the Issue Date to, but excluding, the date that is 24 months after the Issue Date, $12.00 per Series
B Preferred Share, (iii) from and including the date that is 24 months after the Issue Date to, but excluding, the date that is 36 months
after the Issue Date, $13.50 per Series B Preferred Share, (iv) from and including the date that is 36 months after the Issue Date to,
but excluding, the date that is 48 months after the Issue Date, $15.50 per Series B Preferred Share and (v) from and including the date
that is 48 months after the Issue Date, $25.00 per Series B Preferred Share, plus, in the case of this clause (v) only, an amount in
cash equal to all accumulated accrued and unpaid dividends thereon (whether or not earned or declared) to, but excluding, the Call Date
or the date of final distribution to such holders, as applicable, without interest; provided, however, that the Liquidation
Preference for the Final Series B Preferred Shares shall be $5.00 per Final Series B Preferred Share.
(dd)
“National Market Listing” shall mean the listing or quotation, as applicable, of securities on or in the New
York Stock Exchange LLC, the NYSE American LLC (formerly known as the NYSE MKT LLC), The Nasdaq Global Market, The Nasdaq Global Select
Market or The Nasdaq Capital Market or any comparable national securities exchange or national securities market.
(ee)
“Notice” shall have the meaning set forth in paragraph (a) of Section 10.8.
(ff)
“Parity Shares” shall have the meaning set forth in paragraph (b) of Section 10.6.
(gg)
“Penalty Dividend” shall mean a dividend payable in Common Shares equal to the Penalty Dividend Percentage multiplied
by 250,000 Common Shares.
(hh)
“Penalty Dividend Percentage” shall mean the percentage equal to (i) 100%, minus (ii) the percentage equal to
(A) the aggregate number of Series B Preferred Shares redeemed, repurchased or otherwise acquired by the Corporation as of the date that
is 18 months after the Issue Date, divided by (B) 1,000,000 Series B Preferred Shares (or such smaller number of Series B Preferred Shares
as is then outstanding).
(ii)
“Preferred Nominee” shall have the meaning set forth in paragraph (a) of Section 10.8.
(jj)
“Preferred Shares” shall mean the shares of Preferred Stock, no par value, of the Corporation.
(kk)
“Required Shares” shall have the meaning set forth in paragraph (g) of Section 10.8.
(ll)
“SEC” shall have the meaning set forth in Section 10.9.
(mm)
“Securities Act” shall mean the Securities Act of 1933, as amended.
(nn)
“Senior Shares” shall have the meaning set forth in paragraph (a) of Section 10.6.
(oo)
“Series A Preferred Shares” shall mean the 10.875% Series A Cumulative Redeemable Preferred Shares of the Corporation.
(pp)
“Series B Preferred Shares” shall have the meaning set forth in Section 10.1.
(qq)
“set apart for payment” shall be deemed to include, without any further action, the following: the recording
by the Corporation in its accounting ledgers of any accounting or bookkeeping entry that indicates, pursuant to an authorization by the
Board of Directors and a declaration of dividends or other distribution by the Corporation, the initial and continued allocation of funds
to be so paid on any series or class of shares of stock of the Corporation; provided, however, that if any funds
for any class or series of Junior Shares or any class or series of Parity Shares are placed in a separate account of the Corporation
or delivered to a disbursing, paying or other similar agent, then “set apart for payment” with respect to the Series B Preferred
Shares shall mean irrevocably placing such funds in a separate account or irrevocably delivering such funds to a disbursing, paying or
other similar agent.
(rr)
“Weighted Average Liquidation Preference” shall mean the number equal to (i) the sum of (A) the number
of Series B Preferred Shares being redeemed that do not constitute the Final Series B Preferred Shares multiplied by the then-applicable
Liquidation Preference per Series B Preferred Share and (B) the number of Series B Preferred Shares being redeemed that do constitute
any or all of the Final Series B Preferred Shares multiplied by $5.00 per Series B Preferred Share, divided by (ii) the aggregate number
of Series B Preferred Shares being redeemed.
10.3
Dividends.
(a)
Beginning on July 1, 2027, holders of issued and outstanding Series B Preferred Shares shall be entitled to receive, when, as and if
approved by the Board of Directors out of funds of the Corporation legally available for the payment of distributions and declared by
the Corporation, cumulative preferential dividends at a rate per annum equal to the Dividend Rate of the Liquidation Preference of the
Series B Preferred Shares in effect on the first calendar day of the applicable Dividend Period (subject to paragraph (b) of Section
10.3). Dividends shall be paid in cash. Dividends shall accrue and accumulate on each issued and outstanding share of the Series B Preferred
Shares on a daily basis from July 1, 2027, and shall be payable quarterly in equal amounts in arrears on the last calendar day of each
Dividend Period (each such day being hereinafter called a “Dividend Payment Date”); provided that if any
Dividend Payment Date is not a Business Day, then the dividend that would otherwise have been payable on such Dividend Payment Date may
be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no interest
or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business
Day. Any dividend payable on the Series B Preferred Shares for any partial Dividend Period shall be prorated and computed on the basis
of a 360-day year consisting of twelve 30-day months. Dividends shall be payable to holders of record as they appear in the stock records
of the Corporation at the close of business on the applicable record date, which shall be the tenth day preceding the applicable Dividend
Payment Date, or such other date designated by the Board of Directors or an officer of the Corporation duly authorized by the Board of
Directors for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (each such
date, a “Dividend Record Date”).
(b)
In the event that there are more than 200,000 Series B Preferred Shares outstanding on the first calendar day of a Dividend Period and
200,000 or fewer Series B Preferred Shares outstanding on the last calendar day of such Dividend Period, the dividends for such Dividend
Period shall be calculated as the sum of (i) (A) the number of days during the Dividend Period during which there are more than 200,000
Series B Preferred Shares outstanding divided by 90 multiplied by (B) the quarterly Dividend Rate multiplied by (C) the Liquidation Preference
per Series B Preferred Share on the first calendar day of such Dividend Period and (ii) (A) the number of days during the Dividend Period
during which there are 200,000 or fewer Series B Preferred Shares outstanding divided by 90 multiplied by (B) the quarterly Dividend
Rate multiplied by (C) $5.00 per Series B Preferred Share.
(c)
If the Corporation fails to pay dividends on the Series B Preferred Shares in full for any six consecutive or non-consecutive Dividend
Periods (such a failure, a “Dividend Default”), then:
(i)
commencing on the first day after the Dividend Payment Date on which a Dividend Default occurs and continuing until the date a Correction
Event with respect to such Dividend Default occurs, the holders of Series B Preferred Shares will have the voting rights described below
in Section 10.7; and
(ii)
following any Dividend Default that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (c), if
the Corporation subsequently fails to pay dividends on the Series B Preferred Shares in full for any Dividend Period, such subsequent
failure shall constitute a separate Dividend Default, and the foregoing provisions of subparagraph (i) of this paragraph (c) shall immediately
apply until such time as a Correction Event occurs with respect to such subsequent Dividend Default.
(d)
If the Corporation fails to obtain or maintain a National Market Listing for the Series B Preferred Shares for 360 consecutive days or
longer (such event, a “Delisting Event”), then:
(i)
commencing on the first day after the Delisting Event occurs and continuing until the date a Correction Event with respect to such Delisting
Event occurs, (A) the then-applicable Liquidation Preference per Series B Preferred Share shall increase by $0.50 per Series B Preferred
Share (except with respect to the Final Series B Preferred Shares) and (B) the holders of Series B Preferred Shares will have the voting
rights described below in Section 10.7; and
(ii)
following any Delisting Event that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (d), if
the Series B Preferred Shares subsequently cease to be subject to a National Market Listing for 360 consecutive days or longer, such
event shall constitute a separate Delisting Event, and the foregoing provisions of subparagraph (i) of this paragraph (d) shall immediately
apply until such time as a Correction Event occurs with respect to such subsequent Delisting Event.
(e)
No distribution or dividend on the Series B Preferred Shares (including the Penalty Dividend) will be declared by the Corporation or
paid or set apart for payment by the Corporation at such time as the terms and provisions of Senior Shares or any agreement of the Corporation
(whether now existing or arising hereafter), including any agreement relating to its indebtedness, prohibit such declaration, payment
or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof
or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or prohibited under the Official Code
of Georgia Annotated or other applicable law; provided, however, notwithstanding anything to the contrary contained
herein, dividends on the Series B Preferred Shares shall continue to accrue and accumulate pursuant to the terms hereof regardless of
whether (i) any or all of the foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally
available for the payment of such dividends; or (iv) such dividends are authorized by the Board of Directors. Accrued and unpaid dividends
on the Series B Preferred Shares will accumulate as of the Dividend Payment Date on which they first become payable.
(f)
Except as provided in paragraph (g) of Section 10.3 and subject to paragraph (h) of Section 10.3, no distributions or dividends,
in cash or otherwise, may be declared or paid or set apart for payment upon the Common Shares or any Junior Shares or Parity Shares,
nor shall any Common Shares or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly
for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation
(except by conversion into or exchange for Junior Shares or by redemption, purchase or acquisition of stock under any employee benefit
plan of the Corporation), unless, on the most recently preceding Dividend Payment Date on which dividends on the Series B Preferred Shares
became payable, the Corporation paid such dividends on the Series B Preferred Shares in full in cash.
(g)
When dividends are not paid in full in cash (or a sum of cash sufficient for such full payment is not so set apart for payment) upon
the Series B Preferred Shares and upon all Parity Shares, all dividends declared, paid or set apart for payment upon the Series B Preferred
Shares and all such Parity Shares shall be declared and paid pro rata in cash or declared and a sum of cash sufficient for the payment
thereof shall be set apart for payment pro rata, so that the amount of dividends declared per share of Series B Preferred Shares and
per share of such Parity Shares shall in all cases bear to each other the same ratio that accumulated dividends per share of Series B
Preferred Shares and such other Parity Shares (which shall not include any accumulation in respect of unpaid dividends for prior dividend
periods if such other Parity Shares do not bear cumulative dividends) bear to each other. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on Series B Preferred Shares which may be in arrears.
(h)
So long as any Series B Preferred Shares remain outstanding, no cash or stock dividends shall be paid or made to any holders of Common
Shares, Series A Preferred Shares or any other class or series of Junior Shares the Corporation may designate, without the consent of
the majority of the votes entitled to be cast by the holders of the outstanding Series B Preferred Shares.
(i)
Any dividend payment made on the Series B Preferred Shares shall first be credited against the earliest accumulated accrued and unpaid
dividend due with respect to such shares which remains payable at the time of such payment.
10.4
Liquidation Preference.
(a)
Subject to the rights of the holders of Senior Shares and Parity Shares, if the Corporation shall commence a voluntary case under the
U.S. Federal bankruptcy laws or any other applicable bankruptcy, insolvency or similar law for the restructuring, reorganization or liquidation
of the Corporation, or consent to the entry of an order for relief in an involuntary case under the U.S. Federal bankruptcy laws or any
other applicable bankruptcy, insolvency or similar state or federal law for the restructuring, reorganization or liquidation of the Corporation
or to the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Corporation
or of any substantial part of its property, or make an assignment for the benefit of its creditors, or admit in writing its inability
to pay its debts generally as they become due, or if a decree or order for relief in respect of the Corporation shall be entered by a
court having jurisdiction in the premises in an involuntary case under the U.S. Federal bankruptcy laws or any other applicable bankruptcy,
insolvency or similar law resulting in the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Corporation or of any substantial part of its property, or ordering the restructuring, reorganization, liquidation,
dissolution or winding up of the Corporation, and any such decree or order shall be unstayed and in effect for a period of 60 consecutive
days and, on account of any such event, the Corporation shall financially restructure, reorganize, recapitalize, liquidate, dissolve
or wind up or sell or dispose of a material portion or amount of its assets in one or more related transactions, in each case in a bankruptcy
or similar state court proceeding (a “Liquidation Event”), before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for the holders of any Common Shares, Series A Preferred Shares
or any other class or series of Junior Shares, as to the distribution of assets upon the occurrence of a Liquidation Event, each holder
of the Series B Preferred Shares shall be entitled to receive an amount of cash equal to the then-applicable Liquidation Preference per
Series B Preferred Share. If, upon the occurrence of a Liquidation Event, the assets of the Corporation, or proceeds thereof, distributable
among the holders of the Series B Preferred Shares shall be insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Senior Shares and Parity Shares as to the distribution of assets upon the occurrence
of a Liquidation Event, then, after payment of liquidating payments and distributions on all outstanding Senior Shares, such assets,
or the proceeds thereof, shall be distributed among the holders of Series B Preferred Shares and any such other Parity Shares ratably
in accordance with the respective amounts that would be payable on such Series B Preferred Shares and any such other Parity Shares if
all amounts payable thereon were paid in full. For the avoidance of doubt, none of (i) a consolidation or merger of the Corporation with
one or more corporations or other entities, (ii) a sale, lease or transfer of all or substantially all of the Corporation’s assets
or (iii) a statutory share exchange shall be deemed to be a Liquidation Event.
(b)
Subject to the rights of the holders of Senior Shares and Parity Shares with respect to a Liquidation Event, upon the occurrence of a
Liquidation Event, after payment shall have been made in full to the holders of the Series B Preferred Shares, as provided in Section
10.4, any other series or class or classes of Junior Shares shall, subject to the respective terms and provisions (if any) applying thereto,
be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Series B Preferred Shares shall
not be entitled to share therein.
10.5
Redemption.
(a)
The Corporation, at its option, upon not less than 30 nor more than 60 days’ written notice as contemplated by paragraph (g) of
Section 10.5, may redeem the Series B Preferred Shares, in whole or in part, at any time or from time to time, for cash at a redemption
price equal to the then-applicable Liquidation Preference per Series B Preferred Share (subject to paragraph (k) of Section 10.5), plus
all accumulated accrued and unpaid dividends thereon (whether or not earned, approved or declared) to, but excluding, the Call Date (subject
to paragraph (j) of Section 10.5), without interest. If fewer than all of the outstanding Series B Preferred Shares are to be redeemed,
the number of shares to be redeemed will be determined by the Corporation and such shares may be redeemed pro rata from the holders of
record of such shares in proportion to the number of such shares held by such holders (with adjustments to avoid redemption of fractional
shares) or by lot in an equitable manner determined by the Corporation.
(b)
If a Change of Control occurs, then the Corporation or the acquiring entity in such Change of Control shall redeem the Series B Preferred
Shares, in whole but not in part, within 120 days after the date on which the Change of Control occurs, for cash at a redemption price
equal to the then-applicable Liquidation Preference per Series B Preferred Share (subject to paragraph (k) of Section 10.5), plus all
accumulated accrued and unpaid dividends thereon (whether or not earned, approved or declared) to, but excluding, the Call Date (subject
to paragraph (j) of Section 10.5), without interest.
(c)
If, as of the date that is 18 months after the Issue Date, the Corporation has failed to redeem, repurchase or otherwise acquire 1,000,000
Series B Preferred Shares (or such smaller number of Series B Preferred Shares as is then outstanding), then within 30 days of such date,
the Corporation shall pay to the holders of Series B Preferred Shares, on a pro rata basis in proportion to the number of such shares
held by such holders, a number of Common Shares equal to the Penalty Dividend, rounded down to the nearest whole Common Share. For the
avoidance of doubt, the payment of a Penalty Dividend pursuant to Section 10.5 shall not constitute a Cumulative Redemption Default under
paragraph (d) of Section 10.5.
(d)
If, as of any Cumulative Redemption Measurement Date, the Corporation has failed to redeem, repurchase or otherwise acquire the applicable
Cumulative Redemption Amount (such a failure, a “Cumulative Redemption Default”), then:
(i)
commencing on the first day after such Cumulative Redemption Measurement Date and continuing until the date a Correction Event with respect
to such Cumulative Redemption Default occurs, the holders of Series B Preferred Shares will have the director nomination rights described
below in Section 10.8; and
(ii)
following any Cumulative Redemption Default that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph
(d), if the Corporation subsequently fails to redeem, repurchase or otherwise acquire the applicable Cumulative Redemption Amount as
of the applicable Cumulative Redemption Measurement Date, such subsequent failure shall constitute a separate Cumulative Redemption Default,
and the foregoing provisions of subparagraph (i) of this paragraph (d) shall immediately apply until such time as a Correction Event
occurs with respect to such subsequent Cumulative Redemption Default.
(e)
With respect to a redemption pursuant to paragraph (a) of Section 10.5, unless all accumulated accrued and unpaid dividends on all Series
B Preferred Shares and any other class or series of Parity Shares shall have been or contemporaneously are (i) declared and paid in cash
or (ii) declared and a sum of cash sufficient for the payment thereof is set apart for payment for all past Dividend Periods and the
then current Dividend Period, no Series B Preferred Shares or such Parity Shares shall be redeemed unless all of the outstanding Series
B Preferred Shares and such Parity Shares are simultaneously redeemed; provided, however, that the foregoing
shall not prevent the purchase or acquisition of the Series B Preferred Shares or such Parity Shares (A) pursuant to a purchase or exchange
offer made on the same terms to holders of all of the outstanding Series B Preferred Shares and such Parity Shares or (B) by conversion
into or exchange for Junior Shares and Parity Shares.
(f)
From and after the Call Date (unless the Corporation (or, if applicable, the acquiring entity) defaults in payment of the redemption
price as contemplated by Section 10.5), all dividends will cease to accumulate on the Series B Preferred Shares called for redemption
pursuant to Section 10.5, such shares shall no longer be deemed to be outstanding, and all of the rights of the holders of such shares
will terminate with respect to such shares, except the right to receive the redemption price and all accumulated accrued and unpaid dividends
up to, but excluding, the Call Date, in cash without interest (upon surrender and endorsement of their certificates, if so required in
accordance with paragraph (i) of Section 10.5).
(g)
Notice of the redemption of any Series B Preferred Shares pursuant to Section 10.5 shall be mailed by first class mail to each holder
of record of Series B Preferred Shares to be redeemed at the address of each such holder as shown on the Corporation’s share transfer
books (or sent in accordance with the procedures of The Depository Trust Company with respect to Series B Preferred Shares registered
in the name of The Depository Trust Company or its nominee): (i) for a redemption pursuant to paragraph (a) of Section 10.5, at least
30 but not more than 60 days prior to the Call Date; and (ii) for a redemption pursuant to paragraph (b) of Section 10.5, not later than
20 days following the date on which a Change of Control occurs. Neither the failure to mail or send any notice required by this paragraph
(g) of Section 10.5, nor any defect therein or in the mailing or sending thereof, to any particular holder, shall affect the sufficiency
of the notice or the validity of the proceedings for redemption with respect to the other holders. Any notice which was mailed or sent
in the manner herein provided shall be conclusively presumed to have been duly given on the date mailed or sent whether or not the holder
receives the notice. Each such notice shall state, as appropriate: (1) the Call Date; (2) for a redemption pursuant to paragraph (a)
of Section 10.5, the number of Series B Preferred Shares to be redeemed; (3) the redemption price of the then-applicable Liquidation
Preference per Series B Preferred Share (subject to paragraph (k) of Section 10.5), plus accumulated accrued and unpaid dividends through,
but excluding, the Call Date; (4) the place or places where any certificates for such shares, other than certificates issued in the form
of fully registered global certificates, are to be surrendered for payment of the redemption price; (5) that dividends on the shares
to be redeemed shall cease to accrue on such Call Date; and (6) any other information required by law or by the applicable rules of any
National Market Listing pursuant to which the Series B Preferred Shares are listed or quoted.
(h)
The Corporation’s (or, if applicable, the acquiring entity’s) obligation to provide cash in accordance with Section 10.5
shall be deemed fulfilled if, on or before the Call Date, the Corporation (or such acquiring entity) shall irrevocably deposit funds
necessary for redemption pursuant to Section 10.5, in trust for the holders of the Series B Preferred Shares so called for redemption
pursuant to Section 10.5, with a bank or trust company that has, or is an affiliate of a bank or trust company that has, capital and
surplus of at least $50,000,000, with irrevocable instructions that such cash be applied to the redemption of the Series B Preferred
Shares so called for redemption, in which case the notice to holders of the Series B Preferred Shares will: (i) state the date of such
deposit; (ii) specify the office of such bank or trust company as the place of payment of the redemption price; and (iii) require such
holders to surrender any certificates representing such shares, other than certificates issued in the form of fully registered global
certificates, at such place on or about the date fixed in such redemption notice (which may not be later than the Call Date) against
payment of the redemption price (including all accumulated accrued and unpaid dividends to the Call Date). No interest shall accrue for
the benefit of the holders of Series B Preferred Shares to be redeemed on any cash so set aside by the Corporation (or such acquiring
entity). Subject to applicable escheat laws, any such cash unclaimed at the end of six months from the Call Date shall revert to the
general funds of the Corporation (or such acquiring entity), after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Corporation (or such acquiring entity) for the payment of such cash.
(i)
On or after any Call Date, each holder of Series B Preferred Shares that holds a certificate, other than certificates issued in the form
of fully registered global certificates, must present and surrender (and properly endorse or assign for transfer, if the Corporation
shall require and if the notice shall so state) each such certificate representing such holder’s Series B Preferred Shares subject
to redemption to the Corporation at the place designated in the applicable notice and thereupon the redemption price of such shares will
be paid to or on the order of the person whose name appears on such certificate representing the Series B Preferred Shares as the owner
thereof, and each surrendered certificate will be canceled. All Series B Preferred Shares redeemed by the Corporation pursuant to Section
10.5, or otherwise acquired by the Corporation, shall be retired and restored to the status of authorized but unissued shares of undesignated
Preferred Shares.
(j)
If the Corporation redeems any of the Series B Preferred Shares pursuant to Section 10.5 and, if the Call Date for such redemption occurs
after a Dividend Record Date and on or prior to the related Dividend Payment Date, then the dividend payable on such Dividend Payment
Date with respect to such shares called for redemption shall be payable on such Dividend Payment Date to the holders of record at the
close of business on such Dividend Record Date, and shall not be payable as part of the redemption price for such shares.
(k)
If, at the time of a redemption of any Series B Preferred Shares pursuant to Section 10.5, there are (i) 200,000 or fewer Series B Preferred
Shares outstanding, the Liquidation Preference for purposes of calculating the redemption price shall be equal to $5.00 per Series B
Preferred Share; or (ii) more than 200,000 Series B Preferred Shares outstanding and such redemption includes any or all of the Final
Series B Preferred Shares, the Liquidation Preference for purposes of calculating the redemption price shall be equal to the Weighted
Average Liquidation Preference.
(l)
No Series B Preferred Shares may be redeemed if such redemption is prohibited under the Official Code of Georgia Annotated or other applicable
law.
10.6
Ranking. Any class or series of stock of the Corporation shall be deemed to rank:
(a)
prior to the Series B Preferred Shares, as to the payment of dividends and as to distribution of assets upon the occurrence of a Liquidation
Event, if the holders of such class or series shall be entitled to the receipt of dividends or of amounts distributable upon the occurrence
of a Liquidation Event, as the case may be, in preference or priority to the holders of Series B Preferred Shares (“Senior Shares”);
(b)
on a parity with the Series B Preferred Shares, as to the payment of dividends and as to distribution of assets upon the occurrence of
a Liquidation Event, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share thereof
be different from those of the Series B Preferred Shares, if the holders of such class or series and the Series B Preferred Shares shall
be entitled to the receipt of dividends and of amounts distributable upon the occurrence of a Liquidation Event in proportion to their
respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or priority one over the
other (“Parity Shares”); and
(c)
junior to the Series B Preferred Shares, as to the payment of dividends and as to the distribution of assets upon the occurrence of a
Liquidation Event, if such class or series shall be the Common Shares, the Series A Preferred Shares or any other class or series of
shares of stock of the Corporation now or hereafter issued and outstanding over which the Series B Preferred Shares have preference or
priority in the payment of dividends and in the distribution of assets upon the occurrence of a Liquidation Event (“Junior Shares”).
10.7
Voting Rights.
(a)
Holders of the Series B Preferred Shares will not have any voting rights, except as set forth in Section 10.7, Section 10.8 or as otherwise
required by the Official Code of Georgia Annotated or other applicable law. On each matter on which holders of Series B Preferred Shares
are entitled to vote, each Series B Preferred Share shall be entitled to one vote, except that when shares of any other class or series
of stock the Corporation may issue have the right to vote with the Series B Preferred Shares as a single class on any matter, the Series
B Preferred Shares and the shares of each such other class or series shall have one vote per share.
(b)
Upon the occurrence of a Dividend Default, subject to the provisions of Section 10.7, the number of directors constituting the Board
of Directors shall be automatically increased by two (if not already increased by two by reason of the election of directors by the holders
of any other class or series of stock the Corporation may issue upon which similar voting rights have been conferred and are exercisable
and with which the Series B Preferred Shares are entitled to vote as a class with respect to the election of such two directors), and
the holders of the Series B Preferred Shares (voting together as a class with all other classes or series of stock the Corporation may
issue upon which similar voting rights have been conferred and are exercisable and which are entitled to vote as a class with the Series
B Preferred Shares in the election of such two directors) will be entitled to vote for the election of such two additional directors
at a special meeting called by the Corporation at the request of the holders of record of at least 25% of the outstanding Series B Preferred
Shares or by the holders of any other class or series of stock the Corporation may issue upon which similar voting rights have been conferred
and are exercisable and which are entitled to vote as a class with the Series B Preferred Shares in the election of such two directors
(unless the request is received less than 60 days before the date fixed for the next annual or special meeting of shareholders of the
Corporation, in which case such vote will be held at the earlier of the second annual or special meeting of stockholders of the Corporation
after such date), and at each subsequent annual meeting until a Correction Event has occurred with respect to such Dividend Default (the
“Dividend Penalty Right”). On the date a Correction Event with respect to a Dividend Default occurs, the rights of
holders of the Series B Preferred Shares to elect any directors pursuant to the Dividend Penalty Right will cease and, unless there are
other classes or series of stock the Corporation may issue upon which similar voting rights have been conferred and are exercisable,
the term of any directors elected by holders of the Series B Preferred Shares pursuant to the Dividend Penalty Right shall immediately
terminate and the number of directors constituting the Board of Directors shall be reduced accordingly. For the avoidance of doubt, in
no event shall the total number of directors elected by holders of the Series B Preferred Shares (voting together as a class with all
other classes or series of stock the Corporation may issue upon which similar voting rights have been conferred and are exercisable and
which are entitled to vote as a class with the Series B Preferred Shares in the election of such directors) pursuant to the voting rights
under this paragraph (b) of Section 10.7 exceed two.
(c)
Upon the occurrence of a Delisting Event, subject to the provisions of Section 10.7, the number of directors constituting the Board of
Directors shall be automatically increased by one (if not already increased by one by reason of the election of directors by the holders
of any other class or series of stock the Corporation may issue upon which similar voting rights have been conferred and are exercisable
and with which the Series B Preferred Shares are entitled to vote as a class with respect to the election of such director), and the
holders of the Series B Preferred Shares (voting together as a class with all other classes or series of stock the Corporation may issue
upon which similar voting rights have been conferred and are exercisable and which are entitled to vote as a class with the Series B
Preferred Shares in the election of such director) will be entitled to vote for the election of such additional director at a special
meeting called by the Corporation at the request of the holders of record of at least 25% of the outstanding Series B Preferred Shares
or by the holders of any other class or series of stock the Corporation may issue upon which similar voting rights have been conferred
and are exercisable and which are entitled to vote as a class with the Series B Preferred Shares in the election of such director (unless
the request is received less than 60 days before the date fixed for the next annual or special meeting of shareholders of the Corporation,
in which case such vote will be held at the earlier of the second annual or special meeting of stockholders of the Corporation after
such date), and at each subsequent annual meeting until a Correction Event has occurred with respect to such Delisting Event (the “Delisting
Penalty Right”). On the date a Correction Event with respect to a Delisting Event occurs, the rights of holders of the Series
B Preferred Shares to elect any director pursuant to the Delisting Penalty Right will cease and, unless there are other classes or series
of stock the Corporation may issue upon which similar voting rights have been conferred and are exercisable, the term of any director
elected by holders of the Series B Preferred Shares pursuant to the Delisting Penalty Right shall immediately terminate and the number
of directors constituting the Board of Directors shall be reduced accordingly. For the avoidance of doubt, in no event shall the total
number of directors elected by holders of the Series B Preferred Shares (voting together as a class with all other classes or series
of stock the Corporation may issue upon which similar voting rights have been conferred and are exercisable and which are entitled to
vote as a class with the Series B Preferred Shares in the election of such directors) pursuant to the voting rights under (i) this paragraph
(c) of Section 10.7 exceed one or (ii) paragraph (b) of Section 10.7 and this paragraph (c) of Section 10.7 exceed two. If (A) a Delisting
Event occurs while a previous Dividend Default remains uncured and (B) two directors are already serving on the Board of Directors pursuant
to the Dividend Penalty Right in accordance with paragraph (b) of Section 10.7, then no additional director may be elected pursuant to
the Delisting Penalty Right under this paragraph (c) of Section 10.7. If a Dividend Default occurs while a previous Delisting Event remains
uncured, then, upon the election of two directors pursuant to the Dividend Penalty Right in accordance with paragraph (b) of Section
10.7, the term of the director then serving on the Board of Directors pursuant to the Delisting Penalty Right, if any, shall immediately
terminate and the number of directors constituting the Board of Directors shall be reduced accordingly.
(d)
If a special meeting is not called by the Corporation within 75 days after request from the requisite holders of Series B Preferred Shares
(or holders of other series or classes of stock the Corporation may issue upon which similar voting rights have been conferred and are
exercisable) as described in paragraphs (b) or (c) of Section 10.7, then the holders of record of at least 25% of the outstanding Series
B Preferred Shares may designate a holder to call the meeting at the expense of the Corporation and such meeting may be called by the
holder so designated upon notice similar to that required for annual meetings of shareholders and shall be held at the place designated
by the holder calling such meeting. The Corporation shall pay all costs and expenses of calling and holding any meeting and of electing
directors pursuant to paragraphs (b), (c) and (d) of Section 10.7, including, without limitation, the cost of preparing, reproducing
and mailing the notice of such meeting, the cost of renting a room for such meeting to be held, the cost of collecting and tabulating
votes and reasonable and documented costs of one outside legal counsel of the holder or holders calling the meeting.
(e)
If, at any time when the voting rights conferred upon the Series B Preferred Shares pursuant to paragraphs (b) or (c) of Section 10.7
are exercisable, any vacancy in the office of a director elected or appointed pursuant to paragraphs (b) or (c) of Section 10.7 or this
paragraph (e) of Section 10.7 shall occur, then such vacancy may be filled only by the remaining such director(s) or by vote of the holders
of record of the outstanding Series B Preferred Shares and any other classes or series of stock the Corporation may issue upon which
similar voting rights have been conferred and are exercisable and which are entitled to vote as a class with the Series B Preferred Shares
in the election of directors pursuant to paragraphs (b) or (c) of Section 10.7. Any director elected or appointed pursuant to paragraphs
(b) or (c) of Section 10.7 or this paragraph (e) of Section 10.7 may be removed only by the affirmative vote of holders of the outstanding
Series B Preferred Shares and any other classes or series of stock the Corporation may issue upon which similar voting rights have been
conferred and are exercisable and which classes or series of equity securities the Corporation may issue are entitled to vote as a class
with the Series B Preferred Shares in the election of directors pursuant to paragraphs (b) or (c) of Section 10.7, such removal to be
effected by the affirmative vote of a majority of the votes entitled to be cast by the holders of the outstanding Series B Preferred
Shares and any such other classes or series of stock the Corporation may issue, and may not be removed by the holders of the Common Shares.
(f)
In no event shall the holders of the Series B Preferred Shares be entitled pursuant to Section 10.7 to submit and have elected a director
nominee (i) whose election as a director would violate or cause the Corporation to be in violation of these Amended and Restated Articles
of Incorporation, the Corporation’s Amended and Restated Bylaws, the Corporation’s Code of Business Conduct and Ethics, the
Corporation’s requirements with regard to director qualifications and policies and guidelines applicable to directors, any National
Market Listing pursuant to which any class or series of the stock of the Corporation is listed or quoted or any applicable state or federal
law, rule or regulation; (ii) that would cause the Corporation to fail to satisfy a requirement relating to director independence of
any National Market Listing pursuant to which any class or series of the stock of the Corporation is listed or quoted (a “Director
Independence Requirement”); (iii) who is a named subject of a pending criminal proceeding (excluding traffic violations and
other minor offenses) or has been convicted in such a criminal proceeding within the past ten years; or (iv) who is subject to any order
of the type specified in Rule 506(d) of Regulation D under the Securities Act. If the election of a director nominee submitted pursuant
to Section 10.7 would violate or cause the Corporation to be in violation of, or to fail to satisfy, any of the foregoing in clauses
(i) or (ii), or if a director nominee meets clauses (iii) or (iv), of this paragraph (f) of Section 10.7, the Corporation shall promptly
notify in writing such director nominee, and the holders of the Series B Preferred Shares (voting together as a class with all other
classes or series of stock the Corporation may issue upon which similar voting rights have been conferred and are exercisable and which
are entitled to vote as a class with the Series B Preferred Shares in the election of such director) shall be entitled to submit a substitute
director nominee within 30 days of such notice.
(g)
So long as any Series B Preferred Shares remain outstanding, no more than seven directors not elected or appointed pursuant to paragraphs
(b), (c) or (e) of Section 10.7 may be elected or appointed.
(h)
So long as any Series B Preferred Shares remain outstanding, the Corporation will not, without the affirmative vote of the holders
of at least two-thirds of the Series B Preferred Shares outstanding at the time, given in person or by proxy, either in writing or
at a meeting (voting together as a series and also together as a class with all other classes or series of stock the Corporation may
issue upon which similar voting rights have been conferred and are exercisable and which are entitled to vote as a class with the
Series B Preferred Shares): (i) authorize or create, or increase the authorized or issued amount of, any class or series of Senior
Shares or reclassify any of the authorized stock of the Corporation into such shares, or create, authorize or issue any obligation
or security convertible into or evidencing the right to purchase any such shares; or (ii) amend, alter or repeal the provisions of
these Amended and Restated Articles of Incorporation, whether by merger, consolidation or otherwise, so as to materially and
adversely affect any right, preference, privilege or voting power of the Series B Preferred Shares (each, an “Event”); provided, however, with
respect to the occurrence of any Event set forth in clause (ii) above, so long as the Series B Preferred Shares remain outstanding
with the terms thereof materially unchanged, taking into account that, upon an occurrence of an Event, the Corporation may not be
the surviving entity (whether or not such Event would constitute a Change of Control), the occurrence of any such Event shall not be
deemed to materially and adversely affect such rights, preferences, privileges or voting power of holders of the Series B Preferred
Shares (although, in accordance with paragraph (b) of Section 10.5, the Corporation would be required to redeem the Series B
Preferred Shares if such Event constitutes a Change of Control) and, provided, further, that any increase in the
amount of the authorized Common Shares or other stock the Corporation may issue (including the Series B Preferred Shares), or the
creation or issuance of any additional Common Shares or Series B Preferred Shares or other class or series of stock that the
Corporation may issue, or any increase in the amount of authorized shares of such class or series, in each case which are Parity
Shares or Junior Shares, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting
powers and shall not require any affirmative vote of the holders of the Series B Preferred Shares. Notwithstanding the foregoing,
(A) if any Event set forth in clause (ii) above would adversely affect one or more but not all other classes or series of stock the
Corporation may issue upon which similar voting rights have been conferred and are exercisable (including the Series B Preferred
Shares for this purpose), then only such classes or series of stock as are adversely affected by and entitled to vote on the matter
shall vote on the matter together as a class in lieu of all other classes or series of stock; and (B) if all series of a class of
Preferred Stock are not equally affected by the proposed Event, there shall be required a two-thirds approval of the class and a
two-thirds approval of each series that will have a diminished status.
(i)
The voting rights provided for in Section 10.7 will not apply if, at or prior to the time when the act with respect to which voting by
holders of the Series B Preferred Shares would otherwise be required pursuant to Section 10.7 shall be effected, all outstanding shares
of Series B Preferred Shares shall have been redeemed or called for redemption upon proper notice and sufficient funds shall have been
deposited in trust to effect such redemption pursuant to paragraph (h) of Section 10.5, unless, in the case of a vote required to authorize
or create any class or series of Senior Shares pursuant to clause (i) of paragraph (h) of Section 10.7, all or a part of the outstanding
Series B Preferred Shares is being redeemed with the proceeds from the sale of the Senior Shares to be authorized or created.
(j)
Except as expressly stated in this Article X or as may be required by the Official Code of Georgia Annotated or other applicable law,
the Series B Preferred Shares will not have any relative, participating, optional or other special voting rights or powers and the affirmative
vote or consent of the holders thereof shall not be required for the taking of any corporate action.
10.8
Director Nomination Rights.
(a)
If a Cumulative Redemption Default has occurred and continuing until the date a Correction Event with respect to such Cumulative Redemption
Default occurs, subject to the provisions of Section 10.8, the Corporation shall include in its proxy statement (including its form of
proxy and ballot) for the next annual meeting of shareholders (or, if such default occurs less than 60 days before the date fixed for
the next annual meeting, the second annual meeting after such occurrence), the name of any nominee for election to the Board of Directors
submitted pursuant to Section 10.8 (each a “Preferred Nominee”), provided:
(i)
timely written notice of such Preferred Nominee satisfying Section 10.8 (“Notice”) is given to the Corporation by
or on behalf of a holder or holders of Series B Preferred Shares that, at the time the Notice is given, satisfy the ownership and other
requirements of Section 10.8 (the “Eligible Preferred Holder”);
(ii)
the Eligible Preferred Holder expressly elects in writing at the time of providing the Notice to have its Preferred Nominee included
in the Corporation’s proxy statement pursuant to Section 10.8; and
(iii)
the Eligible Preferred Holder and the Preferred Nominee otherwise satisfy the requirements of Section 10.8.
(b)
The Notice shall be directed to the attention of the Secretary of the Corporation. To be timely, the Notice shall be delivered to or
mailed and received at the principal executive office of the Corporation not less than 60 nor more than 200 days before the first anniversary
of the date of the Corporation’s notice of annual meeting sent to shareholders in connection with the previous year’s annual
meeting; provided that if no annual meeting was held in the previous year, or the date of the annual meeting has been established
to be more than 30 days earlier than, or 60 days after, the anniversary of the previous year’s annual meeting, the Notice, to be
timely, must be so delivered or mailed and received not later than (i) the 90th day prior to the annual meeting or (ii) if later, the
close of business on the tenth day following the day on which public announcement is first made of the date of the annual meeting. In
no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any
time period) for the giving of the Notice.
(c)
In addition to including the name of the Preferred Nominee in the Corporation’s proxy statement for the annual meeting, the Corporation
shall also include the information concerning the Preferred Nominee and the Eligible Preferred Holder that is required to be disclosed
in the Corporation’s proxy statement pursuant to the Exchange Act.
(d)
Each Eligible Preferred Holder and Preferred Nominee, as the case may be, must provide within five Business Days of the Corporation’s
request (i) information necessary to (A) verify that such Eligible Preferred Holder owns the Required Shares (which request, for the
avoidance of doubt, may be satisfied with written statements from such Eligible Preferred Holder and each intermediary through which
the Required Shares are held verifying that such Eligible Preferred Holder beneficially owns the Required Shares, a certificate or certificates
representing the Required Shares in such Eligible Preferred Holder’s name or any other proof that is reasonably acceptable to the
Corporation) and (B) determine whether such Preferred Nominee meets the Corporation’s requirements with regard to director qualifications
and policies and guidelines applicable to directors, including whether such Preferred Nominee satisfies the requirements relating to
director independence of any National Market Listing pursuant to which any class or series of the stock of the Corporation is listed
or quoted; and (ii) such additional information, limited to the type of information set forth in Section 2.15 of the Corporation’s
Amended and Restated Bylaws, as the Corporation may reasonably request.
(e)
In the event that any information or communications provided by an Eligible Preferred Holder or Preferred Nominee to the Corporation
or its shareholders ceases to be true and correct in any material respect or omits a fact necessary to make the statements made, in light
of the circumstances under which they were made, not materially misleading, each Eligible Preferred Holder or Preferred Nominee, as the
case may be, shall promptly notify in writing the Secretary of the Corporation of any such inaccuracy or omission in such previously
provided information and of the information that is required to make such information or communication true and correct in all material
respects.
(f)
In no event shall an Eligible Preferred Holder be entitled pursuant to Section 10.8 to submit and have elected a Preferred Nominee (i)
whose election as a director would violate or cause the Corporation to be in violation of these Amended and Restated Articles of Incorporation,
the Corporation’s Amended and Restated Bylaws, the Corporation’s Code of Business Conduct and Ethics, the Corporation’s
requirements with regard to director qualifications and policies and guidelines applicable to directors, any National Market Listing
pursuant to which any class or series of the stock of the Corporation is listed or quoted or any applicable state or federal law, rule
or regulation; (ii) that would cause the Corporation to fail to satisfy a Director Independence Requirement; (iii) who is a named subject
of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding
within the past ten years; or (iv) who is subject to any order of the type specified in Rule 506(d) of Regulation D under the Securities
Act. If the election of a Preferred Nominee submitted by an Eligible Preferred Holder would violate or cause the Corporation to be in
violation of, or to fail to satisfy, any of the foregoing in clauses (i) or (ii), or if a Preferred Nominee meets clauses (iii) or (iv),
of this paragraph (f) of Section 10.8, the Corporation shall promptly notify in writing such Eligible Preferred Holder, and such Eligible
Preferred Holder shall be entitled to submit a substitute Preferred Nominee within the same time period for the giving of the Notice
in paragraph (b) of Section 10.8.
(g)
An Eligible Preferred Holder must beneficially own a number of Series B Preferred Shares that represents 10% or more of the outstanding
Series B Preferred Shares (the “Required Shares”) as of both the date the Notice is delivered to or received by the
Corporation in accordance with Section 10.8 and the record date for determining holders entitled to vote at the meeting. In the event
there is more than one Eligible Preferred Holder for any annual meeting, each Eligible Preferred Holder may submit a Preferred Nominee
for inclusion in the Corporation’s proxy statement.
(h)
If a Correction Event with respect to a Cumulative Redemption Default has not occurred at or prior to the commencement of the applicable
annual meeting, then one director shall be elected out of the Preferred Nominee(s) by a plurality of the votes cast by the Series B Preferred
Shares at the annual meeting. The election of such director (the “Elected Preferred Nominee”) shall be effective as
of the first Business Day following the applicable Cumulative Redemption Deadline (the “Election Effective Time”).
At the Election Effective Time, the number of directors constituting the Board of Directors shall be automatically increased by one to
accommodate such election.
(i)
If a Correction Event with respect to a Cumulative Redemption Default occurs at or prior to the Election Effective Time, then, as applicable,
either (i) prior to a vote being held on the election of a director out of the Preferred Nominee(s) at the annual meeting, all Preferred
Nominees shall be automatically deemed to have withdrawn from the election or (ii) if a vote is held on the election of a director out
of the Preferred Nominee(s) at the annual meeting, (A) such vote will be deemed void, (B) the Preferred Nominee who received a plurality
of the votes cast by the Series B Preferred Shares at the annual meeting shall not be deemed to have been elected as a director and (C)
the number of directors constituting the Board of Directors shall remain unchanged.
(j)
On the date a Correction Event with respect to a Cumulative Redemption Default occurs, the rights of Eligible Preferred Holders to submit
Preferred Nominees and have an Elected Preferred Nominee elected out of such Preferred Nominee(s) pursuant to such default will cease,
and the term of the Elected Preferred Nominee then serving on the Board of Directors pursuant to such default, if any, shall immediately
terminate and the number of directors constituting the Board of Directors shall be reduced accordingly.
(k)
If (i) a subsequent Cumulative Redemption Default occurs while a previous Cumulative Redemption Default remains uncured and (ii) the
Elected Preferred Nominee is already serving on the Board of Directors pursuant to a previous Cumulative Redemption Default, then (A)
Eligible Preferred Holders may not submit Preferred Nominees for inclusion in the Corporation’s proxy statement and (B) no additional
Elected Preferred Nominee may be elected. For the avoidance of doubt, only one Elected Preferred Nominee elected pursuant to Section
10.8 may serve on the Board of Directors at any time.
(l)
If a Dividend Default occurs while a previous Cumulative Redemption Default remains uncured, then, upon the election of two directors
pursuant to the Dividend Penalty Right in accordance with paragraph (b) of Section 10.7, the term of the Elected Preferred Nominee then
serving on the Board of Directors pursuant to such Cumulative Redemption Default, if any, shall immediately terminate and the number
of directors constituting the Board of Directors shall be reduced accordingly.
10.9
Information Rights. During any period in which the Corporation is not subject to Section 13 or 15(d) of the Exchange Act and
any shares of Series B Preferred Shares are outstanding, the Corporation will use its best efforts to: (a) transmit by mail (or other
permissible means under the Exchange Act) to all holders of Series B Preferred Shares, as their names and addresses appear on the record
books of the Corporation and without cost to such holders, copies of the annual reports on Form 10-K and quarterly reports on Form 10-Q
that the Corporation would have been required to file with the Securities and Exchange Commission (the “SEC”)
pursuant to Section 13 or 15(d) of the Exchange Act if it were subject thereto (other than any exhibits that would have been required);
and (b) promptly, upon request, supply copies of such reports to any holders of Series B Preferred Shares. The Corporation will use its
best efforts to mail (or otherwise provide) the information to the holders of the Series B Preferred Shares within 15 days after the
respective dates by which a periodic report on Form 10-K or Form 10-Q, as the case may be, in respect of such information would have
been required to be filed with the SEC, if the Corporation were subject to Section 13 or 15(d) of the Exchange Act, in each case, based
on the dates on which the Corporation would be required to file such periodic reports if it were a “non-accelerated filer”
within the meaning of the Exchange Act.
10.10
Sinking Fund. The Series B Preferred Shares shall not be entitled to the benefits of any retirement or sinking fund.
10.11
Conversion. The Series B Preferred Shares shall not be, pursuant to the terms hereof, convertible into or exchangeable for any stock
or other securities or property of the Corporation.
*
* * * * *
IN
WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to be executed by its President and attested to by its Senior
Vice President this 27th day of June, 2023.
| |
By: |
/s/ Brent Morrison |
| |
Name: |
Brent Morrison |
| |
Title: |
President |
| |
|
|
| |
ATTEST: |
/s/ Paul O’Sullivan |
| |
Name: |
Paul O’Sullivan |
| |
Title: |
Senior Vice President |
[Seal]
Exhibit
3.6
AMENDMENT
NO. 1 TO
AMENDED
AND RESTATED BYLAWS
OF
REGIONAL
HEALTH PROPERTIES, INC.
I,
the undersigned, do hereby certify:
| 1. | I
am a duly elected, qualified and acting officer of Regional Health Properties, Inc., a Georgia
corporation (the “Company”). |
| 2. | The
amendment to the Amended and Restated Bylaws of Regional Health Properties, Inc., dated September
21, 2017 (the “Bylaws”), reflected herein was approved and adopted
by the Company’s Board of Directors (the “Board”) on June
27, 2023 in accordance with the authority provided to the Board in Sections 4.09 and 11.01(a)
of the Bylaws and Sections 14-2-821 and 14-2-1020 of the Georgia Business Corporation Code. |
| 3. | Section
10.05 of the Bylaws has been amended, as of June 27, 2023, to add to the end of Section 10.05
of the Bylaws the additional sentence set forth below: |
“Without
in any way limiting the foregoing and notwithstanding anything in these Bylaws to the contrary, whenever, pursuant to the Articles of
Incorporation, the holders of any one or more classes of preferred stock or series thereof issued by the Corporation shall have the right
to call a special meeting of shareholders to nominate, elect and/or remove directors of the Corporation (whether at an annual or special
meeting of shareholders and whether voting separately by class or series), to fix the number of such directors or their term in office,
to fill any vacancy on the Board of Directors, to determine any other features of each such directorship or to vote or take other action
in respect of any of the foregoing, then the provisions set forth in the Articles of Incorporation with respect to such matters shall
govern and control in the event of any conflict with these Bylaws and these Bylaws shall be deemed automatically amended to the fullest
extent necessary to eliminate such conflict and to harmonize these Bylaws with such provisions of the Articles of Incorporation in all
respects.”
*
* * * *
IN
WITNESS WHEREOF, I have hereunto subscribed my name this 27th day of June 2023.
| |
REGIONAL HEALTH PROPERTIES, INC. |
| |
|
|
| |
By: |
/s/ Brent Morrison |
| |
Name: |
Brent Morrison |
| |
Title: |
Chief Executive Officer and President |
Signature
Page to Amendment No. 1 to Amended and Restated Bylaws of
Regional
Health Properties, Inc.
Exhibit
5.1
Troutman
Pepper Hamilton Sanders LLP
600
Peachtree Street NE, Suite 3000
Atlanta,
GA 30308-2216
|
 |
| |
|
troutman.com
|
|
June
28, 2023
Regional
Health Properties, Inc.
454
Satellite Boulevard NW, Suite 100
Suwanee,
Georgia 30024
| Re: |
Regional
Health Properties, Inc. Post-Effective Amendment No. 1 to Registration Statement on Form S-4 (File No. 333-269750) |
Ladies
and Gentlemen:
We
have acted as counsel to Regional Health Properties, Inc., a Georgia corporation (the “Company”), in connection
with the Company’s filing on or about the date hereof of a Post-Effective Amendment No. 1 to the Registration Statement on Form
S-4 (File No. 333-269750), originally filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), on February 14, 2023, and declared effective
by the Commission on May 25, 2023 (the “Registration Statement”), relating to the proposed issuance of up to
2,811,535 shares of the Company’s 12.5% Series B Cumulative Redeemable Preferred Shares (the “Series B Preferred Shares”),
issuable pursuant to an exchange offer (the “Exchange Offer”) by the Company to exchange any and all of the
outstanding shares of the Company’s 10.875% Series A Cumulative Redeemable Preferred Shares (the “Series A Preferred
Shares”) for the Series B Preferred Shares, as described in the Registration Statement. Unless otherwise indicated in this
opinion letter, each capitalized term used herein has the meaning ascribed to it in the Registration Statement.
This
opinion letter is being furnished in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K promulgated under the Securities
Act.
In
connection with the foregoing, we have examined originals, or duplicates or certified or conformed copies, of such corporate records,
agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection
with the opinions hereinafter set forth, including (i) the organizational documents of the Company, which include the Amended and Restated
Articles of Incorporation, as amended to date (the “Charter”), and the Amended and Restated Bylaws of the Company,
as amended to date, (ii) the resolutions of the Board of Directors of the Company with respect to the Registration Statement, the Exchange
Offer and certain related matters, (iii) the Registration Statement and exhibits thereto, and (iv) the Tender Offer Statement and Rule
13e-3 Transaction Statement on Schedule TO/13E-3, originally filed by the Company with the Commission on February 14, 2023, as amended
to date, relating to the Exchange Offer.
Regional Health Properties, Inc.
June
28, 2023
Page
2
|
|
For
purposes of the opinions expressed below, we have assumed without verification (i) the authenticity of all documents submitted to us
as originals, (ii) the conformity to the originals of all documents submitted as certified, photostatic or electronic copies and the
authenticity of the originals thereof, (iii) the legal capacity of natural persons, (iv) the genuineness of signatures not witnessed
by us, (v) the due authorization, execution and delivery of all documents by all parties, other than the Company, and the validity, binding
effect and enforceability thereof and (vi) the truth, accuracy and completeness of the information, representations and warranties contained
in the records, documents, instruments and certificates we have reviewed. We also have assumed that the effectiveness of the Registration
Statement, and any amendments thereto (including post-effective amendments), shall not have been terminated or rescinded.
As
to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon oral
or written statements and representations of officers and other representatives of the Company and others and of public officials.
We
do not express any opinion herein concerning any law other than the laws of the State of Georgia. We are not opining on “blue sky”
or other state securities laws. This opinion letter is limited to the matters stated herein, and no opinion is implied or may be inferred
beyond the matters expressly stated herein.
Based
upon and subject to the foregoing, we are of the opinion that, following the acceptance of the Series A Preferred Shares for payment
for the issuance of the Series B Preferred Shares in accordance with the Exchange Offer, the Series B Preferred Shares, when issued in
accordance with the terms and conditions of the Exchange Offer, will be validly issued, fully paid and nonassessable. In rendering the
foregoing opinions, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares
provided in the Georgia Business Corporation Code.
This
opinion letter is as of the date hereof and we have no responsibility to update this opinion letter for events and circumstances occurring
after the date hereof or as to facts relating to prior events that are subsequently brought to our attention and we disavow any undertaking
to advise you of any changes in law.
We
hereby consent to the filing of this opinion letter with the Commission as an exhibit to the Registration Statement and any amendments
thereto and with respect to our name wherever it appears in the Registration Statement. In giving this consent, we do not hereby admit
that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the Rules and Regulations
of the Commission promulgated thereunder.
| |
Very
truly yours, |
| |
|
| |
/s/
Troutman Pepper Hamilton Sanders LLP |
Regional Health Properties (AMEX:RHE-A)
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