Form 8-K/A - Current report: [Amend]

Real Good Food Company, Inc. true 0001871149 --12-31 0001871149 2024-11-12 2024-11-12

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K/A

(Amendment No. 1)

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported) November 12, 2024

 

 

THE REAL GOOD FOOD COMPANY, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		001-41025		87-1280343
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification Number)

3 Executive Campus, Suite 155

Cherry Hill, NJ 08002

(Address of Principal Executive Offices; Zip Code)

[phone]

(Registrant’s telephone number, including area code)

Not applicable

(Former name or former address, if changed since last report)

 

 

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:

 

☐	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))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of Each Class		Trading Symbol(s)		Name of Each Exchange on which Registered
Class A common stock $0.0001 par value per share		RGF		Nasdaq Global Market

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).

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 13(a) of the Exchange Act. ☒

 

 

 

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Explanatory Note

On November 18, 2024, The Real Good Food Company, Inc. (the “Company”) filed a Form 8-K (the “Original 8-K”) with the Securities and Exchange Commission (the “SEC”) to report certain events under Items 3.02, 3.03 and 5.03. Due to an inadvertent error, the Original 8-K erroneously stated that the Company amended and restated its Certificate of Incorporation on November 12, 2024, and erroneously filed as Exhibit 3.2 the form of amended and restated certificate of incorporation, which was previously included in the Company’s preliminary proxy statement on Schedule 14A filed with the SEC on November 12, 2024 (and remains subject to a shareholder vote at a special meeting once called by the Company). This Amendment No. 1 to Form 8-K amends and restates the Original 8-K, solely by deleting the last sentence of the first paragraph of Item 5.03 therein and deleting Exhibit 3.2.

 

Item 3.02

Unregistered Sales of Equity Securities.

The disclosure in Item 5.03 regarding the issuance of the Series A Preferred Stock (as defined in Item 5.03) is incorporated herein by reference. The Series A Preferred Stock was issued in reliance upon the exemption from the registration requirements in Section 4(a)(2) of the Securities Act of 1933, as amended.

 

Item 3.03

Material Modification to Rights of Security Holders.

The information in Item 5.03 is incorporated by reference herein.

 

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

As previously disclosed, on September 20, 2024, Company entered into various agreements with affiliates of Emblem Investments Fund I, LP (“Emblem”), including a loan agreement for a term loan in a principal amount of $60.0 million (the “Emblem Loan Agreement”) and an exchange agreement (the “Exchange Agreement”), pursuant to which the Company agreed to issue Emblem newly created Class C Units the Company’s subsidiary, Real Good Foods, LLC (the “LLC”) equal to 19.99% of the outstanding fully diluted economic non-voting interests in the LLC immediately after such issuance. In connection with Emblem Loan Agreement, on November 12, 2024, the Company also issued to Emblem 6,876,814 shares of a newly designated series of preferred stock of the Company (the “Series A Preferred Stock”), equal to 19.99% of the voting non-economic interests in the Company outstanding as of September 20, 2024. On November 12, 2024, the Company filed the Certificate of Designation of Series A Preferred Stock (the “Series A Certificate of Designation”) with the Delaware Secretary of State, creating the Series A Preferred Stock and establishing the rights, preferences and other terms of the Series A Preferred Stock, and issued the Series A Preferred Stock.

The following is a summary of the material terms of the Series A Certificate of Designation:

 

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Shares authorized for potential issuance: 10,000,000, par value $0.0001.

 

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Liquidation preference: senior to both Class A Common Stock (“Class A Common Stock”), par value $0.0001 per share, and Class B Common stock, par value $0.0001 per share (“Class B Common Stock” and collectively with the Class A Common Stock, “Common Stock”).

 

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Dividend right: holders of Series A Preferred Stock are not entitled to receive dividends, either cash or property.

 

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Voting rights: each holder of Series A Preferred Stock is entitled to one vote for each share of Series A Preferred Stock owned, on all matters submitted to a vote of the holders of Common Stock of the Company.

The Exchange Agreement and terms of the Series A Preferred Stock provide that upon approval of the Company’s stockholders, the shares of Series A Preferred Stock issued to Emblem shall be cancelled, and shares of Class B Common Stock shall be issued to Emblem such that Emblem will own 19.99% of the fully diluted voting non-economic interests in the Company immediately after such issuance.

A copy of the Series A Certificate of Designation is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit Number		Description
3.1		Certificate of Designation of Series A Preferred Stock of Real Good Food Company, Inc., dated November 12, 2024.
104		Cover Page Interactive Data File (embedded within the inline XRBL document).

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

				THE REAL GOOD FOOD COMPANY, INC.
Date: November 19, 2024				By:		/s/ Tim Zimmer
						Tim Zimmer
						Chief Executive Officer

Exhibit 3.1

CERTIFICATE OF DESIGNATION

OF

SERIES A PREFERRED STOCK

OF

THE REAL GOOD FOOD COMPANY, INC.

Pursuant to Section 151 of the Delaware General Corporation Law, The Real Good Food Company, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies that the following resolution was duly adopted by the board of directors of the Corporation (the “Board of Directors”) on November 12, 2024:

RESOLVED, that pursuant to the authority conferred by the Amended and Restated Certificate of Incorporation of the Corporation (as it may be amended from time to time, including any certificate of designation relating to any series of Preferred Stock, the “Certificate of Incorporation”), which provides that the Corporation shall have authority to issue 10,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”), and authorizes the Board of Directors, subject to limitations prescribed by law, to provide, by resolution or resolutions for the issuance of shares of Preferred Stock in one or more series, and with respect to each series, to establish the number of shares to be included in each such series, and to fix the voting powers (if any), designations, powers, preferences, and relative, participating, optional or other special rights (if any) of the shares of each such series, and any qualifications, limitations or restrictions thereof, the Board of Directors hereby designates, creates and authorizes a series of Preferred Stock with such voting and other powers, preferences, and relative, participating, optional or other special rights, and qualifications, limitations and restrictions thereof, as follows:

Section 1. Number and Designation. The shares of this series shall be designated as the “Series A Preferred Stock”. The authorized number of shares of Series A Preferred Stock shall initially be 6,876,814, and such shares shall have a par value of $0.0001 per share. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares of Series A Preferred Stock then outstanding.

Section 2. Liquidation Preference. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, each holder of Series A Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to stockholders of the Corporation, before any distribution of assets is made on the common stock, par value $0.001 per share, of the Corporation (the “Common Stock”) or on any other class or series of stock of the Corporation that is not Parity Stock or Senior Stock, but after distributions of assets on each class or series of stock of the Corporation (including any series of Preferred Stock established after the date this Certificate of Designation becomes effective) the terms of which expressly provide that such class or series ranks senior to the Series A Preferred Stock as to distribution of assets upon the liquidation, dissolution or winding up of the affairs of the Corporation (“Senior Stock”), an amount equal to $0.0001 per share of Series A Preferred Stock. If, upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, the Corporation’s assets, or proceeds thereof, distributable among the holders of the Series A Preferred Stock are insufficient to pay in full the preferential amount aforesaid and the liquidation preference on any class or series of stock of the Corporation (including any series of Preferred Stock established after the date this Certificate of Designation becomes effective) the terms of which expressly provide that such class or series ranks pari passu with the Series A Preferred Stock as to distribution of

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assets upon the liquidation, dissolution or winding up of the affairs of the Corporation (“Parity Stock”), then such assets, or the proceeds thereof, shall be distributed among the holders of the Series A Preferred Stock and any other Parity Stock equally and ratably in proportion to the respective amounts that would be payable on such shares of Series A Preferred Stock and any such other Parity Stock if all amounts payable thereon were paid in full. Neither the voluntary sale, conveyance, exchange or transfer, for cash, shares of stock, securities or other consideration, of all or substantially all of the Corporation’s property or assets, nor the merger or consolidation of the Corporation with or into any corporation or other entity or the merger or consolidation of any corporation or other entity with or into the Corporation shall be deemed to be a voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation. After the payment to the holders of Series A Preferred Stock of the full preferential amounts provided for above, such holders as such shall have no right or claim to any of the remaining assets of the Corporation. If any assets of the Corporation distributed to holders of the Series A Preferred Stock in connection with any liquidation, dissolution or winding up of the affairs of the Corporation are other than cash, then the value of such assets shall be their fair market value as determined in good faith by written resolution of the Board of Directors.

Section 3. Dividends. The holders of Series A Preferred Stock shall not be entitled to receive any dividends (including cash, stock or property) in respect of their Series A Preferred Stock.

Section 4. Voting Rights. Each holder of Series A Preferred Stock, as such, shall be entitled to one (1) vote for each share of Series A Preferred Stock on all matters submitted to a vote of the holders of Common Stock of the Corporation, as adjusted to account for any subdivision (by stock split, subdivision, exchange, stock dividend, reclassification, recapitalization or otherwise) or combination (by reverse stock split, exchange, reclassification, recapitalization or otherwise) or similar reclassification or recapitalization of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock occurring after the date of this Certificate of Designation). Except as otherwise provided in the Certificate of Incorporation or required by applicable law, the holders of the Series A Preferred Stock shall vote together as a single class with the holders of Common Stock (or, if the holders of one or more other classes or series of capital stock or Preferred Stock are entitled to vote together with the holders of Common Stock and Series A Preferred Stock, as a single class with the holders of the Common Stock and such other classes or series of capital stock or Preferred Stock) on all matters submitted to a vote of the stockholders generally. Any action required under the Delaware General Corporation Law (as it may be amended from time to time) or permitted to be taken by the holders of Series A Preferred Stock, voting separately as a series or together with one or more other classes or series of capital stock or Preferred Stock which also permits action to be taken by consent without a meeting, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of the outstanding Series A Preferred Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of Series A Preferred Stock were present and voted.

Section 5. Transfers of Series A Preferred Stock; Restrictions.

(a) A holder of Series A Preferred Stock may surrender shares of Series A Preferred Stock to the Corporation for no consideration at any time, and all outstanding shares of Series A Preferred Stock shall, automatically and without further action on the part of the Corporation or any holder thereof, be surrendered to the Corporation for no consideration effective upon consummation of the Intermediate Issuance (as defined in that certain Exchange Agreement, dated as of September 20, 2024, by and among the Corporation, Real Good Foods, LLC, a Delaware limited liability company (the “LLC”), and the holders of membership interests in the LLC party thereto (as it may be amended, modified and/or waived from time to time, the “Exchange Agreement”)). Following the surrender of any shares of Series A Preferred Stock to the Corporation, the Corporation will take all actions necessary to retire such shares and such shares shall not be reissued by the Corporation as shares of Series A Preferred Stock and shall be restored to the status of authorized but unissued shares of Preferred Stock without designation as to series.

 

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(b) Prior to the consummation of the Intermediate Issuance (as defined in the Exchange Agreement), the transfer of any Series C Units (as defined in the Amended and Restated Operating Agreement of Real Good Foods, LLC, dated as of September 20, 2024 (as it may be amended, modified and/or waived from time to time, the “LLC Agreement”)) pursuant to the terms of the LLC Agreement shall result in the automatic transfer of the same number of shares of Series A Preferred Stock held by the same transferring Series C Unitholder to the same transferee.

(c) Prior to the consummation of the Intermediate Issuance, upon any Exchange of a Series C Unit for one share of Class A Common Stock in accordance with the Exchange Agreement and the LLC Agreement, the same number of shares of Series A Preferred Stock registered in the name of the exchanging Series C Unitholder shall automatically and without further action on the part of the Corporation or such holder, be surrendered to the Corporation for no consideration, whereupon the Corporation will take all actions necessary to retire such shares and such shares shall not be reissued by the Corporation as shares of Series A Preferred Stock and shall be restored to the status of authorized but unissued shares of Preferred Stock without designation as to series.

(d) No share of Series A Preferred Stock may be sold, exchanged or otherwise transferred, except (i) as contemplated by Section 5(a), Section 5(b) or Section 5(c) and (ii) that a holder of Series A Preferred Stock may transfer shares of Series A Preferred Stock if (and only if) such holder also simultaneously transfers the same number of Series C Units pursuant to and in compliance with the requirements of the LLC Agreement. The transfer restrictions described in this Section 5(d) are referred to as the “Restrictions”.

(e) Any purported transfer of Series A Preferred Stock in violation of the Restrictions shall, to the fullest extent permitted by applicable law, be null and void ab initio, and to the fullest extent permitted by law, the purported transferee of such shares shall not obtain any rights in and to such shares and the purported transfer of such shares shall not be recognized by the Corporation.

(f) If, notwithstanding the Restrictions, any outstanding share of Series A Preferred Stock shall cease to be held by a registered holder of Series C Units, then such share of Series A Preferred Stock shall automatically and without further action on the part of the Corporation or the holder of such Series A Preferred Stock be transferred to the Corporation for the no consideration whereupon such shares shall automatically be canceled and and shall no longer be outstanding, and all rights with respect to such share shall automatically cease.

(g) The Board of Directors may, to the fullest extent permitted by applicable law, from time to time establish, modify, amend or rescind, by bylaw or otherwise, regulations and procedures that are consistent with the provisions of this Section 5 and the LLC Agreement, for determining whether any transfer or acquisition of Series A Preferred Stock would violate the Restrictions and for the orderly application, administration and implementation of the provisions of this Section 5. Any such procedures and regulations shall be kept on file with the Secretary of the Corporation and a copy thereof shall be provided free of charge to any stockholder who makes a request therefor.

Section 6. Reclassification. The Series A Preferred Stock may not be subdivided, split, consolidated, reclassified or otherwise changed unless contemporaneously therewith the Series C Units are subdivided, split, consolidated, reclassified or otherwise changed in the same proportion and in the same manner.

 

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Section 7. Merger or Consolidation. In the event of a merger or consolidation of the Corporation with or into another entity (whether or not the Corporation is the surviving entity) or any other transaction in which shares of Common Stock are exchanged for or converted into other stock or securities, or the right to receive cash and/or any other property, the holders of Series A Preferred Stock shall not be entitled to receive any economic consideration in respect of the Series A Preferred Stock.

Section 8. Certain Adjustments. In the event of a subdivision, combination or reclassification (whether by stock split, reverse stock split, stock dividend or otherwise) or dividend declared in connection with the adoption of a “poison pill” or similar shareholders rights plan (each, a “Stock Adjustment”), a corresponding Stock Adjustment shall be declared or made on the Series A Preferred Stock in the same proportion and manner, such that the same proportionate economic and voting ownership between the holders of outstanding Common Stock and Series A Preferred Stock on the record date for such Stock Adjustment is preserved, unless different treatment of the shares of Common Stock and Series A Preferred Stock is approved by the holders of a majority of the outstanding Common Stock and the holders of a majority of the outstanding Series A Preferred Stock, each voting as separate classes.

Section 9. Severability. To the extent that any provision of this Certificate of Designation is found to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Certificate of Designation, and following any determination by a court of competent jurisdiction that any provision of this Certificate of Designation is invalid or unenforceable, this Certificate of Designation shall contain only such provisions (i) as were in effect immediately prior to such determination and (ii) were not so determined to be invalid or unenforceable.

Section 10. Definitions. Capitalized terms used and not otherwise defined in this Certificate of Designation have the meanings set forth in the Certificate of Incorporation.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the undersigned has caused this Certificate of Designation to be signed by its duly authorized officer on the date set forth below.

 

THE REAL GOOD FOOD COMPANY, INC.
By:		/s/ Tim Zimmer
Name:		Tim Zimmer
Title:		Chief Executive Officer
Date: November 12, 2024

[Certificate of Designation of Series A Preferred Stock]

Document and Entity Information	Nov. 12, 2024
Cover [Abstract]
Entity Registrant Name	Real Good Food Company, Inc.
Amendment Flag	true
Entity Central Index Key	0001871149
Current Fiscal Year End Date	--12-31
Document Type	8-K/A
Document Period End Date	Nov. 12, 2024
Entity Incorporation State Country Code	DE
Entity File Number	001-41025
Entity Tax Identification Number	87-1280343
Entity Address, Address Line One	3 Executive Campus
Entity Address, Address Line Two	Suite 155
Entity Address, City or Town	Cherry Hill
Entity Address, State or Province	NJ
Entity Address, Postal Zip Code	08002
City Area Code	(856)
Local Phone Number	644-5624
Written Communications	false
Soliciting Material	false
Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false
Security 12b Title	Class A common stock $0.0001 par value per share
Trading Symbol	RGF
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Entity Ex Transition Period	true
Amendment Description	On November 18, 2024, The Real Good Food Company, Inc. (the “Company”) filed a Form 8-K (the “Original 8-K”) with the Securities and Exchange Commission (the “SEC”) to report certain events under Items 3.02, 3.03 and 5.03. Due to an inadvertent error, the Original 8-K erroneously stated that the Company amended and restated its Certificate of Incorporation on November 12, 2024, and erroneously filed as Exhibit 3.2 the form of amended and restated certificate of incorporation, which was previously included in the Company’s preliminary proxy statement on Schedule 14A filed with the SEC on November 12, 2024 (and remains subject to a shareholder vote at a special meeting once called by the Company). This Amendment No. 1 to Form 8-K amends and restates the Original 8-K, solely by deleting the last sentence of the first paragraph of Item 5.03 therein and deleting Exhibit 3.2.

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