UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
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| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
As disclosed below, at the Special Meeting of Stockholders (the “Special Meeting”) of Polished.com Inc. (the “Company”) held virtually on October 19, 2023, the Company’s stockholders approved a proposal (the “Reverse Split Proposal”) authorizing an amendment (the “Certificate of Amendment”) to the Company’s Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Company’s outstanding shares of common stock at an exchange ratio between 1 for 25 and 1 for 75, as determined by the Company’s Board of Directors (the “Board”).
On October 19, 2023, the Company filed with the Secretary of State of the State of Delaware the Certificate of Amendment to effect a reverse stock split (the “Reverse Split”) of the Company’s common stock at an exchange ratio of 1 for 50, which was approved by the Board. The Reverse Split was effective at 12:01 a.m. Eastern Time on October 20, 2023 (the “Effective Time”). At the Effective Time, every 50 shares of the Company’s issued and outstanding common stock were automatically converted into one share of common stock, without any change in the par value per share. In addition, proportionate adjustments were made to the per share exercise price and the number of shares issuable upon the exercise of all outstanding stock options, warrants and convertible securities, and to the number of shares issued and issuable under the Company’s stock incentive plans. Any stockholder who would otherwise be entitled to a fractional share of common stock created as a result of the Reverse Split will be entitled to receive a cash payment in lieu thereof equal to the fractional share to which the stockholder would otherwise be entitled multiplied by the closing sales price of a share of common stock on October 19, 2023, as adjusted for the Reverse Split.
Following the Reverse Split, the shares of common stock will continue to trade on NYSE American LLC under the symbol “POL”. The new CUSIP number for the common stock following the Reverse Split will be 28252C 208.
The summary of the Certificate of Amendment contained herein does not purport to be complete and is qualified in its entirety by reference to the full text of the Certificate of Amendment, a copy of which is attached as Exhibit 3.1 of this Current Report on Form 8-K and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
The Company held the Special Meeting on October 19, 2023 at 11:00 a.m. Eastern Time in virtual format. Of the Company’s 105,469,878 shares of common stock issued and outstanding and eligible to vote as of September 19, 2023, the record date for the Special Meeting, 59,477,848 shares, or approximately 56.4% of the eligible shares of common stock, were present virtually or represented by proxy. A quorum was present for all matters. Each of the matters set forth below is described in detail in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on September 28, 2023. The following actions were taken at the Special Meeting:
Proposal 1
The Company’s stockholders approved an amendment to the Company’s Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Company’s common stock at an exchange ratio between 1 for 25 and 1 for 75, as determined by the Company’s Board of Directors.
| Votes For | Votes Against | Votes Abstained | ||
| 40,585,966 | 18,825,686 | 66,196 |
Proposal 2
The Company’s stockholders approved the adjournment of the Special Meeting in the event the Company did not receive the requisite stockholder vote to approve the Reverse Split Proposal or establish a quorum. This proposal had no effect because the Company received the requisite stockholder vote.
| Votes For | Votes Against | Votes Abstained | ||
| 39,795,871 | 19,274,652 | 407,325 |
| Item 7.01. | Regulation FD Disclosure. |
On October 19, 2023, the Company issued a press release announcing the Reverse Split, a copy of which is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
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The information in this Current Report on Form 8-K under Item 7.01, including the information contained in Exhibit 99.1, is being furnished to the Securities and Exchange Commission, and shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section, and shall not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, except as shall be expressly set forth by a specific reference in such filing.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits |
| Exhibit No. |
Description | |
| 3.1 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Polished.com Inc., dated October 19, 2023. | |
| 99.1 | Press Release, dated October 19, 2023. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| POLISHED.COM INC. | ||
| By: |
/s/ Robert D. Barry | |
| Robert D. Barry | ||
| Interim Chief Financial Officer and Secretary | ||
Date: October 20, 2023
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Exhibit 3.1
CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
POLISHED.COM INC.
(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)
Polished.com Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:
FIRST: The name of the Corporation is Polished.com Inc. The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware (the “Secretary of State”) on January 10, 2019 under the name 1847 Goedeker Inc. An Amended and Restated Certificate of Incorporation was filed with the Secretary of State on July 30, 2020. A Certificate of Amendment to the Amended and Restated Certificate of Incorporation was filed with the Secretary of State on December 22, 2021, and a Certificate of Correction of the Certificate of Amendment to the Amended and Restated Certificate of Incorporation was filed with the Secretary of State on July 7, 2022. A second Certificate of Amendment to the Amended and Restated Certificate of Incorporation was filed with the Secretary of State on July 20, 2022 (the Company’s Amended and Restated Certificate of Incorporation, as amended, is referred to herein as the “Current Certificate”).
SECOND: Pursuant to Section 242(b) of the DGCL, the Board of Directors of the Corporation has duly adopted, and the outstanding stock entitled to vote thereon has approved, the amendments to the Current Certificate set forth in this Certificate of Amendment.
THIRD: Article IV of the Current Certificate is hereby amended and restated as follows:
The total number of shares of capital stock which the Corporation shall have authority to issue is two hundred million (200,000,000) shares of common stock, $0.0001 par value per share (the “Common Stock”), and twenty million (20,000,000) shares of preferred stock, $0.0001 par value per share (the “Preferred Stock”). All Common Stock of the Corporation shall be of the same class and shall have the same rights and preferences. Shares of Preferred Stock may be issued from time to time in one or more classes or series, each of which class or series shall have such distinctive designation or title as shall be fixed by the Board of Directors of the Corporation or, to the extent permitted by the DGCL, any committee thereof established by resolution of the Board of Directors pursuant to the Bylaws of the Corporation prior to the issuance of any shares thereof. Each such class or series of Preferred Stock shall have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated in such resolution or resolutions providing for the issue of such class or series of Preferred Stock as may be adopted from time to time by the Board of Directors prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in it, all in accordance with the laws of the State of Delaware.
Upon the effectiveness of the certificate of amendment first inserting this paragraph (the “Effective Time”), each 50 shares of Common Stock outstanding immediately prior to the Effective Time shall be automatically combined into (1) outstanding share of Common Stock of the Corporation, without any further action by the Corporation or the holder thereof (the “Reverse Stock Split”). No fractional shares shall be issued in connection with the Reverse Stock Split. Stockholders who would otherwise be entitled to receive fractional shares shall be entitled to cash in lieu of the fractional share. Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”) shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to any elimination of fractional share interests.
FOURTH: On October 18, 2023, the Board of Directors of the Corporation determined that each 50 shares of the Corporation’s common stock, par value $0.0001 per share, outstanding immediately prior to the Effective Time shall automatically be combined into one (1) validly issued, fully paid and non-assessable share of the Corporation’s common stock, par value $0.0001 per share. The Corporation publicly announced this ratio on October 19, 2023.
FIFTH: This Certificate of Amendment shall become effective at 12:01 a.m. (local time in Wilmington, Delaware) on October 20, 2023.
IN WITNESS WHEREOF, Polished.com Inc. has caused this Certificate of Amendment to be signed this 19th day of October, 2023.
| POLISHED.COM INC. | ||
| By: | /s/ Robert D. Barry | |
| Name: | Robert D. Barry | |
| Title: | Interim Chief Financial Officer and Secretary | |
Exhibit 99.1
Polished.com Announces Reverse Stock Split
BROOKLYN, N.Y.--(BUSINESS WIRE)-- Polished.com Inc. (the “Company” or “Polished”) (NYSE American: POL) today announced that the Board of Directors and stockholders of the Company approved a 1-for-50 reverse stock split (the “Reverse Stock Split”) of its outstanding shares of common stock (the “Common Stock”) that will become effective at 12:01 a.m. ET on October 20, 2023. The Company’s Common Stock will continue to trade on the NYSE American under the existing symbol “POL.”
The Reverse Stock Split was approved by the Company’s stockholders at the Special Meeting of Stockholders (the “Special Meeting”) on October 19, 2023. As a result of the Reverse Stock Split, every 50 shares of Common Stock issued and outstanding will be automatically combined into one share of Common Stock. The Reverse Stock Split will proportionately reduce the number of outstanding shares of Common Stock from approximately 105.5 million shares to approximately 2.1 million shares and the ownership percentage of each stockholder will remain unchanged other than as a result of fractional shares. The Company will pay cash for fractional shares.
The Reverse Stock Split is part of the Company’s plan to regain compliance with the $0.20 per share minimum closing price required to maintain continued listing on the NYSE American.
About Polished.com Inc.
Polished is raising the bar, delivering a world-class, white-glove shopping experience for home appliances. From the best product selections from top brands to exceptional customer service, we are simplifying the purchasing process and empowering consumers as we provide a polished experience, from inspiration to installation. A product expert helps customers get inspired and imagine the space they want, then shares fresh ideas, unbiased recommendations and excellent deals to suit the project’s budget and style. The goal is peace of mind when it comes to new appliances. Polished perks include its “Love-It-Or-Return-It” 30-day policy, extended warranties, the ability to arrange for delivery and installation at your convenience and other special offers. Learn more at www.Polished.com.
Forward-Looking Statements
This press release contains “forward-looking statements” that are subject to substantial risks and uncertainties. All statements, other than statements of historical fact, contained in this press release are forward-looking statements. Forward-looking statements contained in this press release may be identified by the use of words such as “anticipate,” “believe,” “contemplate,” “could,” “estimate,” “expect,” “intend,” “seek,” “may,” “might,” “plan,” “potential,” “predict,” “project,” “target,” “aim,” “should,” “will”, “would,” or the negative of these words or other similar expressions, although not all forward-looking statements contain these words. Forward-looking statements are based on the Company’s current expectations and are subject to inherent uncertainties, risks and assumptions that are difficult to predict. Further, certain forward-looking statements are based on assumptions as to future events that may not prove to be accurate. You should not place undue reliance on forward-looking statements because they involve known and unknown risks, uncertainties and other factors, which are, in some cases, beyond the Company’s control and which could materially affect results. Factors that may cause actual results to differ materially from current expectations include, among other things, those described more fully in the section titled “Risk Factors” of the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 and the Company’s other reports filed with the Securities and Exchange Commission. Forward-looking statements contained in this press release are made as of this date, and the Company undertakes no duty to update such information except as required under applicable law.
Additional Information and Where to Find It
Polished is holding the Special Meeting to approve the reverse stock split. In connection with seeking shareholder approval, Polished has filed with the SEC a proxy statement and other documents describing the proposed transaction. Stockholders are urged to read the proxy statement because it contains important information about the transaction. A definitive proxy statement will be sent to the stockholders of Polished seeking their approval of the reverse stock split. Stockholders may obtain a free copy of the proxy statement and other documents filed by Polished with the SEC at the SEC’s Web site at www.sec.gov, or by directing a request to Polished.com Inc., 1870 Bath Avenue, Brooklyn, NY 11214, Attention: Secretary.
Participants in Solicitation
Polished and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of Polished in connection with the Reverse Stock Split. Information about the directors and executive officers of Polished is set forth in Polished’s Form 10-K for the fiscal year ended December 31, 2022 filed with the SEC on July 31, 2023, as amended by Amendment No. 1 on Form 10-K/A filed with the SEC on August 1, 2023 and Amendment No. 2 on Form 10-K/A filed with the SEC on August 8, 2023, and the proxy statement filed with the SEC on December 19, 2022. Additional information regarding the interests of these participants and other persons who may be deemed participants in the Reverse Stock Split may be obtained by reading the proxy statement filed on September 28, 2023 regarding the Reverse Stock Split.
Contacts
Investor Relations
ir@polished.com
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