Form 8-K - Current report

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): May 7, 2024 (May 1, 2024)

CONX Corp.

(Exact name of registrant as specified in its charter)

Nevada

001-39677

85-2728630

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

5701 S. Santa Fe Dr.

Littleton, CO 80120
(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code: (303) 472-1542

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, par value $0.0001 per share	N/A	N/A
Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share	N/A	N/A

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. ¨

INTRODUCTORY NOTE

On May 1, 2024 (the “Closing Date”), CONX Corp. (the “Company” or “CONX”), completed its previously announced purchase from EchoStar Real Estate Holding L.L.C. (“Seller”), a subsidiary of EchoStar Corporation (“EchoStar”), of that certain commercial real estate property (the “Property”) in Littleton, Colorado, comprising the corporate headquarters of DISH Wireless, for a purchase price of $26.75 million (the “Transaction”), pursuant to the terms of the purchase and sale agreement (as amended by that certain Amendment No. 1 thereto, dated May 1, 2024, the “Purchase Agreement”), dated as of March 10, 2024, by and between the Company and Seller (the “Closing”). The Transaction constitutes the Company’s “Business Combination”, as that term is defined in the Company’s Amended and Restated Articles of Incorporation.

In connection with the Transaction, each share of the then-issued and outstanding Class B common stock, par value $0.0001 per share of the Company (“Class B Common Stock”), automatically converted into one share of Class A common stock, par value $0.0001 per share of the Company (“Class A Common Stock”, and such conversion the “Class B Conversion”), on the Closing Date.

The foregoing descriptions of the Purchase Agreement and the transactions contemplated thereby do not purport to be complete, and are qualified in their entirety by reference to the full text of such instruments. A copy of the Purchase Agreement was filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on March 11, 2024 and is incorporated herein by reference. A copy of Amendment No. 1 to the Purchase Agreement was filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K filed with the SEC on May 2, 2024 and is incorporated herein by reference.

Lease Agreement

On the Closing Date, the Company and Seller entered into a lease agreement (the “Seller Lease Agreement”), pursuant to which Seller leased the Property from the Company. The Seller Lease Agreement is a “triple-net” lease. The Seller Lease Agreement provides for (i) an initial term of approximately 10 years, (ii) a base rent payable during the first year of the initial term of $228,500 per month, which will escalate annually at a rate of two percent per annum, (iii) a monthly additional rent payment, which is estimated for each calendar year and paid in equal monthly installments (“Additional Rent”), which represents Seller’s proportionate share of the operating expenses of the Property, and (iv) two five-year renewal options for Seller, with the base rent upon a renewal to be revised to fair market value and subject to the same annual escalation terms. CONX’s estimated maintenance and repair obligations with respect to roof, shell, core and systems will be reflected in the Additional Rent as operating expenses to be reimbursed by Seller. Under the Seller Lease Agreement, the responsibilities for management of the Property are allocated among the Company and Seller, as tenant, such that the Company assumes responsibility for roof, shell, core and systems and all other responsibilities (such as general maintenance and repair) are assumed by Seller.

Following the end of each calendar year, CONX will deliver to Seller a statement of the actual expenses (an “Expense Statement”) incurred at the Property for the preceding year. To the extent Seller’s proportionate share of the actual expenses incurred at the Property exceed the estimated expenses for such year, Seller will be obligated to pay CONX the difference within 30 days of its receipt of the Expense Statement. To the extent Seller’s proportionate share of the actual expenses incurred at the Property are less than the estimated expenses for such year, CONX will be required to refund Seller the difference at the time it delivers the Expense Statement.

All of Seller’s obligations under the Seller Lease Agreement are guaranteed by DISH Network Corporation (”DISH”), an affiliate of Seller.

The foregoing descriptions of the Seller Lease Agreement and the transactions contemplated thereby do not purport to be complete, and are qualified in their entirety by reference to the full text of such instruments. A copy of the Seller Lease Agreement was filed as Exhibit 10.3 to the Company’s Current Report on Form 8-K filed with the SEC on May 2, 2024 and is incorporated herein by reference.

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Issuance of Series A Preferred Stock

On the Closing Date, the Company completed its previously announced transaction (the “Equity Forward Transaction”) pursuant to the terms of the subscription agreement, dated as of November 1, 2023, by and between the Company and Charles W. Ergen, the Company’s founder or an affiliate (such agreement, as amended by that certain Amendment No. 1 thereto, dated March 25, 2024, the “Subscription Agreement”). The closing of the Equity Forward Transaction was contingent upon the consummation of the Transaction. Prior to the Closing Date, Mr. Ergen assigned the Subscription Agreement in accordance with its terms to a trust established for the benefit of his family (the “Trust”). On the Closing Date, the Company issued and sold to the Trust 17,391,300 shares of the Company’s Series A Convertible Preferred Stock, par value $0.0001 per share (the “Preferred Stock”), at an aggregate purchase price of approximately $200 million, or $11.50 per share. The Company used a portion of the proceeds from the Equity Forward Transaction to fund the purchase price for the Property.

On the Closing Date, the Company filed a Certificate of Designation (the “Certificate of Designation”) with the Secretary of State of the State of Nevada setting forth the terms, rights, obligations and preferences of the Preferred Stock. Pursuant to the Certificate of Designation, on the tenth trading day following the date on which the volume-weighted average price for the Company’s common stock over any twenty trading days within any preceding thirty consecutive trading day period is greater than or equal to $11.50, each share of Preferred Stock will mandatorily be converted into one share of Class A Common Stock, subject to certain limitations and customary adjustments for stock dividends, stock splits and similar corporate actions.

If the Preferred Stock has not earlier been converted, the Company will redeem each share of Preferred Stock after the date that is the fifth anniversary of the Closing, on not less than 10 nor more than 20 days prior notice, in cash at a price equal to $11.50 per share, subject to certain customary adjustments.

The foregoing descriptions of the Subscription Agreement, the Certificate of Designation and the transactions contemplated thereby do not purport to be complete, and are qualified in their entirety by reference to the full text of such instruments. A copy of the Subscription Agreement was filed as Exhibit 10.1 of the Current Report on Form 8-K filed by the Company with the SEC on November 1, 2023, and is incorporated herein by reference. A copy of Amendment No. 1 to the Subscription Agreement, dated March 25, 2024, was filed as Exhibit (d)(15) of Schedule TO-I filed by the Company with the SEC on April 1, 2024, and is incorporated herein by reference.

Tender Offer

Pursuant to the Tender Offer Statement on Schedule TO originally filed with the SEC by CONX on April 1, 2024 (together with any subsequent amendments and supplements thereto, the “Schedule TO”) in connection with the Company’s offer to purchase for cash up to 2,120,269 of its issued and outstanding shares of Class A Common Stock at a price of $10.598120 per share (the “Purchase Price”), a total of 1,941,684 shares of Class A Common Stock (the “Tendered Shares”) were validly tendered and not properly withdrawn as of the expiration date of the tender offer and were accepted for purchase by the Company. The Company purchased all such tendered shares of Class A Common Stock at the Purchase Price.

Immediately after giving effect to the purchase of the Tendered Shares and the conversion of the Company’s then-issued and outstanding shares of Class B Common Stock into shares of Class A Common Stock (described above), there were 18,928,585 shares of Class A Common Stock outstanding, no shares of Class B Common Stock outstanding and 17,391,300 shares of Preferred Stock outstanding as of the Closing Date. As of immediately following the Closing, (i) CONX’s public stockholders owned less than 1% of the outstanding shares of Class A Common Stock, and (ii) nXgen Opportunities, LLC and related parties and directors of the Company collectively owned approximately 99% of the outstanding shares of Class A Common Stock.

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Item 2.01 Completion of Acquisition or Disposition of Assets.

The disclosure contained in the Introductory Note of this Current Report on Form 8-K (the “Report”) is incorporated into this Item 2.01 by reference.

Seller is a subsidiary of EchoStar. Our Chairman and Director, Charles W. Ergen, is Chairman and co-founder of EchoStar and DISH. Our Chief Executive Officer, Kyle Jason Kiser served as Treasurer of DISH form 2008 to 2023. The disclosure set forth in the section titled “The Transaction – Interests of Certain Persons in the Transaction” beginning on page 51 of the Offer to Purchase filed as Exhibit (a)(1)(A) of the Schedule TO-I filed by the Company with the SEC on April 1, 2024 (together with any subsequent amendments and supplements thereto, the “Offer to Purchase”), is incorporated herein by reference.

FORM 10 INFORMATION

Item 2.01(f) of Form 8-K states that if the registrant was a shell company, as the Company was immediately before the closing of the Transaction, then the registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities on Form 10. As a result of the closing of the Transaction, and as discussed below in Item 5.06 of this Report, the Company has ceased to be a shell company. Accordingly, the Company is providing below the information that would be included in a Form 10 if it were to file a Form 10. Please note that the information provided below relates to the Company after the closing of the Transaction, unless otherwise specifically indicated or the context otherwise requires.

Cautionary Note Regarding Forward Looking Statements

This Report includes forward-looking statements that involve risks and uncertainties. Forward-looking statements are statements that are not historical facts. Such forward-looking statements are subject to risks and uncertainties, which could cause actual results to differ from the forward-looking statements. These forward-looking statements and factors that may cause such differences include, without limitation, uncertainties relating to the Transaction, and other risks and uncertainties indicated from time to time in filings with the SEC, including “Risk Factors” in the Offer to Purchase and in Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 29, 2024, as amended on Form 10-K/A, filed with the SEC on April 15, 2024 (the “Form 10-K”), and in other reports we file with the SEC. CONX expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in CONX’s expectations with respect thereto or any change in events, conditions or circumstances on which any statement is based.

Business

The business of CONX is described in the section titled “Information About CONX Following the Transaction” beginning on page 40 of the Offer to Purchase, and that information is incorporated herein by reference.

We are subject to the information reporting requirements of the Securities Exchange Act of 1934, and we file annual, quarterly and current reports and other information with the SEC. Our SEC filings are available free of charge at the SEC’s website at www.sec.gov.

Risk Factors

Risk factors related to CONX’s business and operations and the Transaction are set forth in the section titled “Risk Factors” beginning on page 40 of the Offer to Purchase and that information is incorporated herein by reference. Additional risk factors about CONX are set forth in the section titled “Risk Factors” beginning on page 14 of the Form 10-K and that information is incorporated herein by reference.

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Financial Information

Reference is made to the disclosure set forth in Item 9.01 of this Report concerning the financial information of CONX. Reference is made to the disclosure set forth in the section titled “Management’s Discussion and analysis of Financial Condition and Results of Operation of CONX” beginning on page 69 of the Offer to Purchase, and the disclosure set forth in the section titled “Quantitative and Qualitative Disclosures About Market Risk” on page 51 of the Form 10-K, which are incorporated herein by reference.

DISH, which is the guarantor under the Seller Lease Agreement, files annual, quarterly and current reports with the SEC. Such reports include the audited financial statements of DISH. DISH’s publicly available filings can be found on the SEC’s website at www.sec.gov and on EchoStar’s website at https://ir.echostar.com/financial-information/sec-filings. Neither DISH’s nor EchoStar’s filings or the other information contained on EchoStar’s website are incorporated by reference herein.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

Reference is made to the disclosure set forth in the section titled “Management’s Discussion and analysis of Financial Condition and Results of Operation of CONX” beginning on page 69 of the Offer to Purchase.

Properties

The Property is the sole property of the Company and is described in the section titled “Information About CONX Following the Transaction” beginning on page 40 of the Offer to Purchase and that information is incorporated herein by reference.

Security Ownership of Certain Beneficial Owners and Management

The following table sets forth information known to the Company regarding the beneficial ownership of the Company as of the Closing Date by:

each person known to the Company to be the beneficial owner of more than 5% of any class of the outstanding common stock of the Company;

each of the Company’s named executive officers and directors; and

all executive officers and directors of the Company as a group.

The beneficial ownership of shares of the Company’s common stock is based on 18,928,585 shares of Class A Common Stock issued and outstanding as of the Closing Date, and (i) with respect to Charles W. Ergen, nXgen Opportunities, LLC (“nXgen”) and all directors and executive officers as a group, 30,261,918 shares of Class A Common Stock, giving effect to the exercise of 11,333,333 private placement warrants to purchase shares of Class A Common Stock, and (ii) with respect to Ranch Legacy Trust, 36,319,885 shares of Class A Common Stock, giving effect to the conversion of 17,391,300 shares of Preferred Stock into shares of Class A Common Stock.

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Beneficial ownership for the purposes of the following table is determined in accordance with the rules and regulations of the SEC.

Name and Address(1)	Number of Shares of Class A Common Stock Beneficially Owned		Percentage of Class(2)
nXgen Opportunities, LLC (3)(4)		30,083,333		99.41	%
Charles W. Ergen (3)(4)		30,083,333		99.41	%
Ranch Legacy Trust (5)		17,391,300		47.88	%
Kyle Jason Kiser (3)		-		-
Gerald Gorman		10,000		*
David K. Moskowitz		10,000		*
Adrian Steckel		10,000		*
All directors and executive officers as a group (five individuals)		30,113,333		99.51	%

* Less than one percent

(1)	Unless otherwise indicated, the business address of each of the persons referenced herein is 5701 S. Santa Fe Dr. Littleton, CO 80120.

(2)	Describes the ownership percentage of shares beneficially owned by each beneficial owner. The calculation assumes the exercise or conversion only of the securities beneficially owned by the applicable beneficial owner into shares of Class A Common Stock held by the applicable beneficial owner that are either currently convertible or exercisable, or may become convertible or exercisable within 60 days after, the date hereof.

(3)

nXgen is the record holder of the securities reported herein. Charles W. Ergen controls nXgen. Mr Ergen has a 90% economic interest in nXgen and our Chief Executive Officer, Kyle Jason Kiser, has a 10% economic interest in, but no beneficial ownership over any securities owned by, nXgen. Mr. Ergen disclaims beneficial ownership over any securities owned by nXgen other than to the extent of his pecuniary interest therein.

(4)	The shares reported herein give effect to the exercise of 11,333,333 private placement warrants to purchase one share of Class A Common Stock each at a price of $11.50 per share, subject to adjustment, exercisable 30 days after the Closing, which warrants expire five years after the Closing or earlier upon redemption or liquidation. The beneficial ownership of shares of Class A Common Stock excludes 17,391,300 shares of Class A Common Stock issuable upon conversion of the Preferred Stock held by the Trust (as defined below) established for the benefit of Mr. Ergen’s family.

(5)	The shares reported herein give effect to 17,391,300 shares of Class A Common Stock issuable upon conversion of the Preferred Stock. Pursuant to the Certificate of Designation, on the tenth trading day following the date on which the volume-weighted average price for the Company’s common stock over any twenty trading days within any preceding thirty consecutive trading day period is greater than or equal to $11.50, each share of Preferred Stock will mandatorily be converted into one share of Class A Common Stock, subject to certain limitations and customary adjustments for stock dividends, stock splits and similar corporate actions. The securities are held directly by Ranch Legacy Trust (the “Trust”). Centennial Fiduciary Management LLC (the “Trustee”) is the trustee of the Trust and Robert J. Hooke is the trust officer of the Trustee. Each such person may be deemed to have beneficial ownership of the shares solely by virtue of its position as trustee of the Trust or trust officer of the Trustee, respectively, and disclaims beneficial ownership over any securities owned by the Trust other than to the extent of its pecuniary interest therein. The business address of the Trust is 1623 Central Ave., Suite 2014, Cheyenne, WY 82001.

Directors and Executive Officers

The Company’s directors and executive officers after the consummation of the Transaction are described in the section titled “Information About CONX Following the Transaction” beginning on page 40 of the Offer to Purchase and that information is incorporated herein by reference.

Certain Relationships and Related Transactions

Certain relationships and related party transactions of CONX are described in the section titled “Certain Relationships and Related Party Transactions” beginning on page 85 of the Offer to Purchase, and the section titled “Certain Relationships and Related Transactions, and Director Independence,” beginning on page 62 of the Form 10-K, and that information is incorporated herein by reference.

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Legal Proceedings

Reference is made to the disclosure regarding legal proceedings in the section titled “Legal Proceedings” on page 45 of the Form 10-K, and that information is incorporated herein by reference.

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

Until May 6, 2024, the Class A Common Stock was listed on the Nasdaq Capital Market under the symbol “CONX.” As of the date of this Report, the Class A Common Stock is not currently listed on any securities exchange. The Company has applied for its securities to be listed on an over-the-counter market operated by OTC Markets Group, Inc.

The following table reflects the high and low closing sales information for our Class A Common Stock for each fiscal quarter during the fiscal years ended December 31, 2023 and 2022 based on historical trading prices on the Nasdaq Capital Market.

	Class A Common Stock Market Price
	High		Low
Fiscal Year Ended December 31, 2023:
First Quarter	$	10.21	$	10.13
Second Quarter	$	10.46	$	10.13
Third Quarter	$	10.44	$	10.24
Fourth Quarter	$	11.35	$	10.35

	Class A Common Stock Market Price
	High		Low
Fiscal Year Ended December 31, 2022:
First Quarter	$	9.85	$	9.78
Second Quarter	$	9.90	$	9.85
Third Quarter	$	10.00	$	9.90
Fourth Quarter	$	10.20	$	9.95

As of the Closing Date, there were approximately 6 holders of record of our Class A Common Stock.

CONX has not paid any cash dividends on shares of Class A Common Stock to date. The payment of cash dividends in the future will be dependent upon our revenues and earnings, if any, capital requirements and general financial condition. The payment of any dividends will be within the discretion of the board of directors of CONX.

Recent Sales of Unregistered Securities

Reference is made to the disclosure set forth below under Item 3.02 of this Report concerning the issuance and sale by the Company of certain unregistered securities, which is incorporated herein by reference.

Description of Registrant’s Securities

The description of the Company’s securities is contained in the section titled “Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934” attached as Exhibit 4.2 to CONX Corp.’s Annual Report on Form 10-K, filed with the SEC on March 1, 2023, which is incorporated herein by reference.

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Indemnification of Directors and Officers

Reference is made to the description of indemnification of directors and officers set forth in the section titled “Directors, Executive Officers and Corporate Governance” beginning on page 54 of the Form 10-K, which is incorporated herein by reference.

Financial Statements and Supplementary Data

Reference is made to the financial statements of CONX included in the Form 10-K beginning on page F-1 thereof, and such financial statements are incorporated herein by reference.

The information set forth under Item 9.01 of this Report is incorporated herein by reference.

Changes in and Disagreements With Accountants on Accounting and Financial Disclosure

Reference is made to the information set forth in the section titled “Changes in and Disagreements with Accountants on Accounting and Financial Disclosure” on page 51 of the Form 10-K, which is incorporated herein by reference.

Item 3.02 Unregistered Sales of Equity Securities.

The disclosure set forth in the “Introductory Note – Issuance of Series A Preferred Stock” is incorporated herein by reference.

The Preferred Stock issued by the Company to the Trust and the Class A Common Stock issued to nXgen as a result of the conversion of the Class B Common Stock on the Closing Date were issued pursuant to and in accordance with the exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and Section 3(a)(9) of the Securities Act, respectively.

Item 3.03 Material Modification to Rights of Security Holders.

The Preferred Stock ranks senior to all of the Company’s common stock as to dividends or distributions of assets upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On May 1, 2024, the Company filed the Certificate of Designation with the Secretary of State of Nevada setting forth the terms, rights, obligations and preferences of the Preferred Stock. A copy of the Certificate of Designation relating to the Preferred Stock is listed as Exhibit 3.1 to this Report and is incorporated herein by reference.

Item 5.06 Change in Shell Company Status.

As a result of the Transaction, the Company ceased being a shell company. Reference is made to the disclosure in the sections titled “The Transaction” beginning on page 47 and “The Purchase Agreement” beginning on page 53 of the Offer to Purchase, which are incorporated herein by reference. Further, the information set forth in the “Introductory Note” and under Item 2.01 of this Report is incorporated herein by reference.

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Item 9.01 Financial Statements and Exhibits.

(b) Pro forma financial information

The unaudited pro forma financial statements are filed as Exhibit 99.1 to this Report and incorporated herein by reference.

(d) Exhibits.

Exhibit No.		Description of Exhibits
2.1		Purchase and Sale Agreement, dated March 10, 2024, by and between CONX Corp. and EchoStar Real Estate Holding L.L.C. (filed as Exhibit 10.1 to CONX Corp.’s Current Report on Form 8-K, filed on March 11, 2024, and incorporated herein by reference).
2.2		Amendment No. 1 to Purchase and Sale Agreement, dated as of April 26, 2024 (filed as Exhibit 10.2 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on May 2, 2024, and incorporated herein by reference).
3.1		Amended and Restated Articles of Incorporation, dated as of October 29, 2020 (filed as Exhibit 3.1 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 3, 2020, and incorporated herein by reference).
3.2		First Amendment to the Amended and Restated Articles of Incorporation, dated as of October 31, 2022 (filed as Exhibit 3.1 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 1, 2022, and incorporated herein by reference).
3.3		Second Amendment to the Amended and Restated Articles of Incorporation of CONX Corp., dated as of June 2, 2023 (filed as Exhibit 3.1 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on June 2, 2023, and incorporated herein by reference).
3.4		Third Amendment to the Amended and Restated Articles of Incorporation of CONX Corp., dated as of November 3, 2023 (filed as Exhibit 3.1 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 3, 2023, and incorporated herein by reference).
3.5		Certificate of Designation of Series A Convertible Preferred Stock
3.6		Bylaws (filed as Exhibit 3.2 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 3, 2020, and incorporated herein by reference).
10.1		Purchase and Sale Agreement, dated March 10, 2024, by and between CONX Corp. and EchoStar Real Estate Holding L.L.C. (filed as Exhibit 10.1 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on March 11, 2024, and incorporated herein by reference).
10.2		Amendment No. 1 to Purchase and Sale Agreement, dated as of April 26, 2024 (filed as Exhibit 10.2 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on May 2, 2024, and incorporated herein by reference).
10.3		Lease Agreement, dated as of May 1, 2024, by and between CONX Corp. and EchoStar Real Estate Holding L.L.C. (filed as Exhibit 10.3 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on May 2, 2024, and incorporated herein by reference).
10.4		Subscription Agreement, dated November 1, 2023 (filed as Exhibit 10.1 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 1, 2023, and incorporated herein by reference).
10.5		Amendment No. 1 to Subscription Agreement, dated March 25, 2024 (filed as Exhibit (d)(15) of Schedule TO-I, filed with the SEC on April 1, 2024, and incorporated herein by reference).
10.6		Letter Agreement, dated October 29, 2020, by and among the Company, its executive officers, its directors and nXgen Opportunities, LLC (filed as Exhibit 10.1 to CONX Corp’s Current Report on Form 8-K, filed with the SEC on November 3, 2020, and incorporated herein by reference).
10.7		Registration Rights and Stockholder Agreement, dated October 29, 2020, by and among the Company, nXgen Opportunities, LLC and the other holders party thereto (filed as Exhibit 10.3 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 3, 2020, and incorporated herein by reference).
10.8		Private Placement Warrants Purchase Agreement, dated October 29, 2020, by and among the Company and nXgen Opportunities, LLC (filed as Exhibit 10.4 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 3, 2020, and incorporated herein by reference).
10.9		Form of Indemnity Agreement between the Company and each of the officers and directors of the Company (filed as Exhibit 10.5 to CONX Corp.’s Current Report on Form 8-K, filed with the SEC on November 3, 2020, and incorporated herein by reference).
99.1		Unaudited Pro Forma Financial Statements of CONX Corp.
104		Cover Page Interactive Data File (embedded within Inline XBRL document).

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SIGNATURE

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.

	CONX Corp.

Date: May 7, 2024	By:	/s/ Kyle Jason Kiser
	Name:	Kyle Jason Kiser
	Title:	Chief Executive Officer

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Exhibit 3.5

CERTIFICATE OF DESIGNATION OF PREFERENCES,

RIGHTS AND LIMITATIONS

SERIES A CONVERTIBLE PREFERRED STOCK

The undersigned, hereby certifies that:

1. He is the Chief Executive Officer of CONX Corp. (the “Corporation”).

2. The Corporation is authorized to issue 20,000,000 shares of preferred stock, none of which have been issued.

3. The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):

WHEREAS, the amended and restated certificate of incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 20,000,000 shares, $0.0001 par value per share, issuable from time to time in one or more series;

WHEREAS, the Board of Directors is authorized to fix the voting powers, designations, preferences, limitations, restrictions and relative or other rights, if any, of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and

WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the voting powers, designations, preferences, limitations, restrictions and relative or other rights relating to a series of the preferred stock, which shall consist of, except as otherwise set forth in the Subscription Agreement, up to 17,391,300 shares of the preferred stock which the Corporation has the authority to issue, as follows:

NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix the voting powers, designations, preferences, limitations, restrictions and relative or other rights relating to such series of preferred stock as follows:

TERMS OF SERIES A CONVERTIBLE PREFERRED STOCK

Section 1. Definitions. For the purposes hereof, the following terms shall have the following meanings:

“Alternate Consideration” shall have the meaning set forth in Section 7(c).

“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.

“Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2 of the Subscription Agreement.

“Commission” means the United States Securities and Exchange Commission.

“Common Stock” means the Corporation’s common stock, par value $0.0001 per share, and stock of any other class of securities into which such securities may hereafter be reclassified or changed.

“Common Stock Equivalents” means any securities of the Corporation or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“Conversion Date” shall have the meaning set forth in Section 6(a).

“Conversion Price” shall have the meaning set forth in Section 6(b).

“Conversion Shares” means, collectively, the shares of Class A Common Stock issuable upon conversion of the shares of Preferred Stock in accordance with the terms hereof.

“Fundamental Transaction” shall have the meaning set forth in Section 7(c).

“Holder” shall have the meaning given such term in Section 2.

“Liquidation” shall have the meaning set forth in Section 5.

“Original Issue Date” means the date of the first issuance of any shares of the Preferred Stock regardless of the number of transfers of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred Stock.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Preferred Stock” shall have the meaning set forth in Section 2.

“Redemption Date” shall have the meaning set forth in Section 8.

“Subscription Agreement” means the Agreement, dated as of November 1, 2023, by and between the Corporation and the Holder, as amended, modified or supplemented from time to time in accordance with its terms.

“Share Delivery Date” shall have the meaning set forth in Section 6(c).

“Stated Value” shall have the meaning set forth in Section 2, as the same may be increased pursuant to Section 3.

“Subsidiary” means any subsidiary of the Corporation and shall, where applicable, also include any direct or indirect subsidiary of the Corporation formed or acquired after the date of the Subscription Agreement.

“Successor Entity” shall have the meaning set forth in Section 7(c).

“Trading Day” means a day on which the principal Trading Market is open for business.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).

“Transaction Documents” means this Certificate of Designation, the Subscription Agreement, all exhibits thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated pursuant to the Subscription Agreement.

“Transfer Agent” means the transfer agent of the Corporation.

“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Preferred Stock then outstanding and reasonably acceptable to the Corporation, the fees and expenses of which shall be paid by the Corporation.

Section 2. Designation, Amount and Par Value. The series of preferred stock shall be designated as its Series A Convertible Preferred Stock (the “Preferred Stock”) and the number of shares so designated shall be up to 17,391,300 (which shall not be subject to increase without the written consent of the holders of a majority in interest of the then outstanding Preferred Stock (each, a “Holder” and collectively, the “Holders”)). Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value equal to $11.50, subject to increase set forth in Section 3 below (the “Stated Value”).

Section 3. Dividends. Except for stock dividends or distributions for which adjustments are to be made pursuant to Section 7, Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. No other dividends shall be paid on shares of Preferred Stock.

Section 4. Voting Rights. Preferred Stock shall not be entitled to vote with holders of outstanding shares of Common Stock with respect to any matters presented to the holders of the Common Stock for their action or consideration (whether at a meeting of stockholders of the Corporation, by written action of stockholders in lieu of a meeting, or otherwise).

Section 5. Ranking; Liquidation. The Preferred Stock shall rank (i) senior to all of the Common Stock; (ii) senior to any class or series of capital stock of the Corporation hereafter created specifically ranking by its terms junior to any Preferred Stock (“Junior Securities”); (iii) on parity with any class or series of capital stock of the Corporation created specifically ranking by its terms on parity with the Preferred Stock (“Parity Securities”); and (iv) junior to any class or series of capital stock of the Corporation hereafter created specifically ranking by its terms senior to any Preferred Stock (“Senior Securities”), in each case, as to dividends or distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntarily or involuntarily. Subject to any superior liquidation rights of the holders of any Senior Securities of the Corporation and the rights of the Corporation’s existing and future creditors, upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”), each Holder shall be entitled to be paid out of the assets of the Corporation legally available for distribution to stockholders, prior and in preference to any distribution of any of the assets or surplus funds of the Corporation to the holders of the Common Stock and Junior Securities and pari passu with any distribution to the holders of Parity Securities, an amount equal to the Stated Value for each share of Preferred Stock held by such Holder and an amount equal to any dividends declared but unpaid thereon, and thereafter the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount that a holder of Common Stock would receive if the Preferred Stock were fully converted (disregarding for such purposes any conversion limitations hereunder) to Common Stock which amounts shall be paid pari passu with all holders of Common Stock. The Corporation shall provide written notice of any such Liquidation, not less than 60 days prior to the payment date stated therein, to each Holder.

Section 6. Conversion.

a) Mandatory Conversion. On the tenth (10) Trading Day following the date on which the VWAP over any twenty (20) Trading Days within any preceding thirty (30) consecutive Trading Day period is greater than or equal to $11.50 (the “Conversion Date”), each share of Preferred Stock shall be converted into that number of shares of the Corporation’s Class A Common Stock (“Class A Common Stock”) (subject to the Share Cap and the limitations set forth in Section 6(c)) determined by dividing the Stated Value of such share of Preferred Stock by the Conversion Price. For conversions of shares of Preferred Stock to take effect, a Holder shall not be required to surrender the certificate(s) representing the shares of Preferred Stock to the Corporation (if any) unless all of the shares of Preferred Stock represented thereby are so converted, in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion Date. Preferred Shares converted into Class A Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued.

b) Conversion Price. The conversion price for each share of Preferred Stock shall be $11.50 (the “Conversion Price”).

c) Mechanics of Conversion

i. Delivery of Conversion Shares Upon Conversion. Not later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) after the Conversion Date (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the Holder (A) the number of Conversion Shares being acquired upon the conversion of the Preferred Stock, and (B) a bank check in the amount of accrued and unpaid dividends, if any. The Corporation shall deliver the Conversion Shares required to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another established clearing corporation performing similar functions. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the Conversion Date.

ii. Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder.

iii. Fractional Preferred Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share. Notwithstanding anything to the contrary contained herein, but consistent with the provisions of this subsection with respect to fractional Conversion Shares, nothing shall prevent any Holder from converting fractional shares of Preferred Stock.

iv. Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all Transfer Agent fees required for same-day processing of any conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

(d) Share Cap. Notwithstanding Section 6(a), the Corporation shall not be required to issue any Conversion Shares to the extent (and only to the extent) that such conversion would result in an increase in the outstanding Common Stock or voting power of the Corporation of five percent (5%) or more (the “Share Cap”) and such issuance has not been approved by the Corporation’s stockholders (including at any special meeting of the Corporation’s stockholders) in accordance with the stockholder approval requirements of NASDAQ Rule 5635 (to the extent such stockholder approval is then required under such Rule or any equivalent rule or requirement of the applicable exchange or automated quotations system on which the Common Stock is then listed or quoted). In the event that any conversion would be restricted by the foregoing limitation, the Corporation shall use reasonable best efforts to take any and all actions which may be necessary, including obtaining regulatory, NASDAQ (or such exchange or automated quotation system on which the Common Stock its then listed) or stockholder approvals, in order that the Corporation may thereafter validly and legally issue such shares of Common Stock to the given Holder or Holder(s) in compliance with the applicable listing standards of NASDAQ (or such exchange or automated quotation system on which the Common Stock is then listed).

Section 7. Certain Adjustments.

a) Stock Dividends and Stock Splits. If the Corporation, at any time while this Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, this Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Corporation, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

b) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) above, if at any time the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on conversion hereof) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.

c) Fundamental Transaction. If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation on the conversion of this Preferred Stock), the number of shares of Common Stock of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(c) on the conversion of this Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 7(c) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the holder of this Preferred Stock, deliver to the Holder in exchange for this Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Preferred Stock (without regard to any limitations on the conversion of this Preferred Stock) prior to such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Preferred Stock immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Certificate of Designation and the other Transaction Documents referring to the “Corporation” shall refer instead to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Corporation herein.

d) Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.

e) Notice to the Holders. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation shall promptly deliver to each Holder by facsimile or email a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

g) Voluntary Adjustment By Corporation. Subject to the rules and regulations of the Trading Market, the Corporation may at any time, subject to the prior written consent of the Holders of the majority in interest of the Preferred Stock then outstanding, reduce the then current Conversion Price to any amount and for any period of time deemed appropriate by the board of directors of the Corporation.

Section 8. Redemption.

a) Mandatory Redemption. Each Preferred Share shall be redeemed by the Corporation on or after the date that is the fifth (5) anniversary of the closing of the Business Combination, on not less than 10 nor more than 20 days prior notice, in cash by wire transfer to a U.S. dollar account maintained by the Holder with a bank in the United States designated in writing by the Holder at a price equal to the Stated Value (the “Redemption Price”).

(b) Optional Redemption. The Corporation may redeem the Preferred Stock, in whole, or in part, on not less than ten (10) nor more than twenty (20) days prior notice, in cash by wire transfer to a U.S. dollar account maintained by the Holder with a bank in the United States designated in writing by the Holder at the Redemption Price.

c) Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, to the Holder at the Holder’s address appearing in the Corporation’s register (the date that such notice of redemption is given in connection with any redemption, the applicable “Redemption Notice Date”). All notices of redemption shall state:

i. the date on which the Preferred Shares will be redeemed (the “Redemption Date”);

ii. that on the Redemption Date the Redemption Price will become due and payable in respect of the Preferred Shares;

iii. the place or places where any certificates of the Preferred Shares are to be surrendered for payment of the Redemption Price.

Section 9. Miscellaneous.

a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by e-mail attachment, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: Kyle Jason Kiser, e-mail address jason.kiser@dish.com, or such other e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by facsimile or e-mail attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, e-mail address or address of such Holder appearing on the books of the Corporation, or if no such facsimile number, e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail attachment at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail attachment at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

b) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.

c) Lost or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation (which shall not include the posting of any bond).

d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles of conflict of laws thereof. The Corporation and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

e) Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.

f) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.

g) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

h) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.

i) Status of Converted or Redeemed Preferred Stock. Preferred Shares of Preferred Stock may only be issued pursuant to the Subscription Agreement. If any shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series A Convertible Preferred Stock.

Exhibit 99.1

UNAUDITED PRO FORMA CONDENSED FINANCIAL INFORMATION

Defined terms included below have the same meaning as terms defined and included elsewhere in this Report and, if not defined in this Report, the Offer to Purchase, unless defined below.

Introduction

The following unaudited pro forma condensed financial information of CONX presents the historical financial information of CONX, adjusted to give effect for the purchase of the Property from Seller. The following unaudited pro forma condensed financial information has been prepared in accordance with Article 11 of Regulation S-X.

The unaudited pro forma condensed balance sheet as of December 31, 2023 presents the historical balance sheet of CONX, adjusted to give effect to the purchase of the Property as of December 31, 2023, on a pro forma basis as if the Transaction had been completed on December 31, 2023.

The unaudited pro forma statement of operations for the year ended December 31, 2023 presents the historical statement of operations of CONX for such period on a pro forma basis as if the Transaction had been consummated on January 1, 2023, the beginning of the period presented.

The unaudited pro forma condensed financial information has been derived from and should be read in conjunction with:

the accompanying notes to the unaudited pro forma condensed financial information;

the historical audited financial statements of CONX as of and for the year ended December 31, 2023 and the related notes thereto, included elsewhere in the Offer to Purchase; and

the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of CONX” and other financial information relating to CONX and the Property included elsewhere in the Offer to Purchase, including the Purchase Agreement.

The unaudited pro forma condensed financial information has been presented for illustrative purposes only and does not necessarily reflect what CONX’s financial condition or results of operations would have been had the Transaction occurred on the dates indicated.

Further, the unaudited pro forma condensed financial information also may not be useful in predicting the future financial condition and results of operations of CONX. The actual financial position and results of operations may differ significantly from the pro forma amounts reflected herein due to a variety of factors. The unaudited transaction accounting adjustments represent management’s estimates based on information available as of the date of this unaudited pro forma condensed combined financial information and are subject to change as additional information becomes available and analyses are performed.

Assumptions and estimates underlying the unaudited pro forma adjustments set forth in the unaudited pro forma condensed financial information are described in the accompanying notes. CONX believes that the assumptions and methodologies provide a reasonable basis for presenting all of the significant effects of the Transaction based on information available to management at this time and that the transaction accounting adjustments give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed financial information.

The Transaction

Pursuant to the Purchase Agreement, on May 1, 2024, CONX purchased from Seller the Property in Littleton, Colorado, comprising the corporate headquarters of DISH Wireless, for a purchase price of $26.75 million.

On May 1, 2024, Seller and CONX entered into the Seller Lease Agreement pursuant to which Seller leased the Property from the Company. The Seller Lease Agreement is a “triple-net” lease. The Seller Lease Agreement provides for (i) an initial term of approximately 10 years, (ii) a base rent payable during the first year of the initial term of $228,500 per month, which will escalate annually at a rate of two percent per annum and (iii) two five-year renewal options for Seller, with the base rent upon a renewal to be revised to fair market value and subject to the same annual escalation terms. All of Seller’s obligations under the Seller Lease Agreement are guaranteed by DISH, an affiliate of Seller.

Pursuant to our Articles, CONX provided public stockholders of Class A Common Stock with the opportunity to redeem, upon the consummation of the Transaction, shares of Class A Common Stock then held by them at a price of $10.598120 per share.

Anticipated Accounting Treatment

The purchase of the Property is intended to be accounted for as an asset acquisition. In accordance with the accounting requirements for transactions among entities under common control, the Property is initially recorded at Seller’s historical carrying value. As a result, the difference between such historical carrying value and the Property Purchase Price of the Property is recorded as an adjustment to equity.

Basis of Pro Forma Presentation

The unaudited pro forma financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses.” The adjustments in the unaudited pro forma financial information have been identified and presented to provide relevant information necessary for an illustrative understanding of CONX upon consummation of the Transaction and the other events contemplated by the Purchase Agreement in accordance with U.S. GAAP.

The unaudited pro forma condensed financial information has been presented for illustrative purposes only and is not necessarily indicative of the operating results and financial position that would have been achieved had the Transaction occurred on the dates indicated, and does not reflect adjustments for any anticipated synergies, operating efficiencies, tax savings or cost savings. Any cash proceeds remaining after the consummation of the Transaction and the other events contemplated by the Purchase Agreement are expected to be used for general corporate purposes. Further, the unaudited pro forma condensed financial information does not purport to project the future operating results or financial position of CONX following the consummation of the Transaction. The unaudited pro forma adjustments represent management’s estimates based on information available as of the date of the unaudited pro forma condensed financial information and are subject to change as additional information becomes available and analyses are performed.

For illustrative purposes, the unaudited pro forma condensed financial information reflects the actual redemptions of Class A Common Stock in connection with the Transaction:

Actual Redemptions (“Actual Share Redemption”) — this adjustment reflects 1,941,684 shares of Class A Common Stock redeemed at the redemption price of $10.598120 per share for an aggregate payment of $20,578,200.03.

The purchase of the Property is intended to be accounted for under U.S. GAAP as an asset acquisition.

We used the cash available from the funds held in the Trust Account to purchase the shares of Class A Common Stock validly tendered and not properly withdrawn pursuant to the Offer, and the balance was released to us to fund a portion of the Purchase Price for the Property. Assuming a Transaction Closing as of December 31, 2023, the balance of the Trust Account as of the Transaction Closing would have been (i) $21,966,104, assuming no redemptions and (ii) $1,387,904 assuming actual redemptions of 1,941,684 shares of Class A Common Stock.

The unaudited pro forma condensed balance sheet and statement of operations do not include adjustments for (i) the outstanding warrants issued in connection with the Initial Public Offering, as such warrants are not exercisable for shares of Class A Common Stock until 30 days after the Transaction Closing, or (ii) the shares of Class A Common Stock issuable upon conversion of the Series A Preferred Stock in the Forward Equity Transaction, as such Series A Preferred Stock is not convertible until (x) the tenth trading day following the date on which the volume-weighted average price for the Company’s common stock over any twenty trading days within any preceding thirty consecutive trading day period is greater than or equal to $11.50, and (y) the issuance of shares has been approved by the Company’s shareholders to the extent (and only to the extent) that such conversion would require stockholder approval under Nasdaq Rule 5635.

The following summarizes the pro forma shares of Common Stock issued and outstanding immediately after the Transaction:

	Actual Redemptions
Name and Address	Number of Shares Beneficially Owned		Percentage of Ownership
Public stockholders		148,585		*
nXgen		18,750,000		99.1	%
Independent Directors		30,000		*
Total shares		18,928,585

*         Less than one percent

UNAUDITED PRO FORMA CONDENSED BALANCE SHEET
AS OF DECEMBER 31, 2023

											Additional
											Transaction
								Pro Forma			Adjustments			Pro Forma
								(Before			(Actual			(Transaction
	CONX Corp			Transaction				Share			Share			and Share
	(Historical)			Adjustments				Redemption)			Redemption)			Redemption)
Assets
Current Assets:
Cash	$	8,162		$	(26,750,000	)	A	$	191,714,007		$	(20,578,200	)	$	171,135,807
					200,000,000		B
					(1,126,833	)	D
					(275,000	)	F
					(2,108,426	)	G
					21,966,104		H

Prepaid expenses		9,166							9,166						9,166
Total current assets		17,328			191,705,845				191,723,173			(20,578,200	)		171,144,973

Noncurrent Assets:
Cash held in trust		21,966,104			(21,966,104	)	H		—						—
Property and equipment, net		—			23,578,323		A		24,798,178						24,798,178
					197,670		C
					1,022,185		D
Total noncurrent assets		21,966,104			2,832,074				24,798,178			—			24,798,178
Total assets	$	21,983,432		$	194,537,919			$	216,521,351		$	(20,578,200	)	$	195,943,151
Liabilities and Stockholders’ Equity (Deficit)
Current Liabilities:
Accounts payable	$	76,826		$				$	76,826		$			$	76,826
Working capital loan - related party		400,000			(400,000	)	G		—						—
Extension notes - related party		1,708,426			(1,708,426	)	G		—						—
Accrued expenses		1,097,000							1,097,000						1,097,000
Accrued excise tax payable		639,193							639,193						639,193
Income taxes payable		70,011			(25,116	)	D		44,895						44,895
Total current liabilities		3,991,456			(2,133,542	)			1,857,914			—			1,857,914

Long-Term Obligations, Net of Current Portion:
Deferred legal fees		275,000			(275,000	)	F		—						—
Deferred underwriting fee payable		26,250,000			(26,250,000	)	E		—						—
Equity forward liability		325,000			(325,000	)	B		—						—
Derivative warrant liabilities		9,205,500							9,205,500						9,205,500
Total long-term obligations, net of current portion		36,055,500			(26,850,000	)			9,205,500			—			9,205,500
Total liabilities		40,046,956			(28,983,542	)			11,063,414			—			11,063,414

Class A common stock subject to possible redemption		21,966,104							21,966,104			(20,578,200	)		1,378,904
Stockholders’ Equity (Deficit):
Preferred stock		—			200,325,000		B		200,325,000						200,325,000
Class A common stock		3							3						3
Class B common stock		1,875							1,875						1,875
Accumulated deficit		(40,031,506	)		197,670		C		(16,835,045	)					(16,835,045	)
					(3,171,677	)	A
					(79,532	)	D
					26,250,000		E

Total stockholders’ equity (deficit)		(40,029,628	)		223,521,461				183,491,833			—			183,491,833
Total liabilities and stockholders’ equity (deficit)	$	21,983,432		$	194,537,919			$	216,521,351		$	(20,578,200	)	$	195,943,151

UNAUDITED PRO FORMA CONDENSED STATEMENT OF OPERATIONS FOR THE PERIOD ENDED DECEMBER 31, 2023

											Additional
											Transaction			Pro Forma
								Pro Forma			Adjustments			(Transaction
								(Before			(Actual			and
	CONX Corp			Transaction				Share			Share			Share
	(Historical)			Adjustments				Redemption)			Redemption)			Redemption)
Revenue:
Rental revenue	$	—		$	2,742,000		BB	$	2,742,000		$			$	2,742,000
Total revenue		—			2,742,000				2,742,000			—			2,742,000

Costs and Expenses
General and administrative expenses		1,178,513			(197,670	)	CC					1,085,491			1,085,491
		104,648					DD
Depreciation and amortization		—			929,022		AA					958,478			958,478
		29,456					EE
Total costs and expenses		1,178,513			865,456				2,043,969			—			2,043,969

Operating income (loss)		(1,178,513	)		1,876,544				698,031			—			698,031

Other Income (Expense):
Other income		—			—				—
Change in fair value of warrant liabilities		(325,000	)		(325,000	)			(325,000	)
Change in fair value of equity forward liability		(4,693,000	)		(4,693,000	)			(4,693,000	)
Interest income on investments held in Trust Account		267,481			(267,481	)	FF					—			—
Total other income (expense)		(4,750,519	)		(267,481	)			(5,018,000	)		—			(5,018,000	)

Income (loss) before income taxes		(5,929,032	)		1,609,063				(4,319,969	)		(4,319,969	)
Income tax (expense) benefit		(65,469	)		(386,175	)	GG					(451,644	)		(451,644	)
Net income (loss)		(5,994,501	)		1,222,888				(4,771,613	)		—			(4,771,613	)

Weighted-average common shares outstanding, basic and diluted
Class A - Common Stock		5,047,364							5,047,364						3,086,002
Class B - Common stock		18,750,000							18,750,000						18,750,000

Basic and diluted net (loss) income per common share
Class A - Common Stock	$	(0.25	)					$	(0.20	)				$	(0.22	)
Class B - Common stock	$	(0.25	)					$	(0.20	)				$	(0.22	)

NOTES TO THE UNAUDITED PRO FORMA CONDENSED FINANCIAL STATEMENTS

Note 1 — Description of the Transaction

Note 2 — Basis of the Presentation

The unaudited pro forma condensed financial information was prepared in accordance with Article 11 of SEC Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses.” The historical financial information of CONX has been adjusted by the transaction accounting adjustments to illustrate the estimated effect of the Transaction and certain other events contemplated by the Purchase Agreement to provide relevant information necessary for an understanding of CONX upon consummation of the Transaction described herein.

The unaudited pro forma condensed financial information is based on the historical financial information of CONX, as adjusted to give effect to the Transaction, which is treated as an asset acquisition under U.S. GAAP.

The unaudited pro forma condensed financial information has been prepared using the actual redemption of 1,941,684 shares of Class A Common Stock held by public stockholders into cash.

The purchase of the Property is intended to be accounted for under U.S. GAAP as an asset acquisition.

Note 3 — Transaction Accounting Adjustments to the CONX Unaudited Pro Forma Condensed Balance Sheet as of December 31, 2023

The transaction accounting adjustments included in the unaudited pro forma condensed balance sheet as of December 31, 2023 are as follows:

(A)

Reflects the acquisition of the Property under the terms of the Purchase Agreement for $26.75 million. In accordance with the accounting requirements for transactions among entities under common control, the Property is initially recorded at Seller’s historical carrying value. The difference between such historical carrying value and the purchase price is recorded as an adjustment to equity.

(B)

Reflects the receipt as of January 1, 2023, of a $200 million investment pursuant to the terms of the Subscription Agreement, resulting in the issuance of 17,391,300 shares of the Company’s Series A Preferred Stock. In connection with this issuance, the equity forward liability was settled and the carrying value was reclassified to Preferred Stock.

(C)

Reflects the capitalization of certain legal costs attributable to the Transaction. Such costs were previously recorded and expensed when incurred in 2023 pending the occurrence of the Transaction becoming probable.

(D)

Reflects the estimated other transaction costs incurred by the Company and allocated between the costs directly attributable to the Transaction, which are capitalized, and costs not directly attributable to the Transaction, which are expensed.

The following table shows the total capitalized transaction costs:

Legal	$	691,785
Accounting	$	62,500
Financial advisory	$	207,000
Administrative	$	35,900
Miscellaneous	$	25,000
	$	1,022,185

(E)

Reflects the reversal of the accrued underwriting fee obligation, due to DBSI’s waiving its entitlement to any portion of the deferred underwriting fee payable to it under the underwriting agreement.

(F)

Reflects the payment of the accrued legal costs as of the Transaction Closing.

(G)

Reflects the net repayment of related party obligations. Subsequent to December 31, 2023, the Sponsor advanced to the Company an additional $500,000 under the Restated Note for working capital, which is also reflected as repaid as of the Transaction Closing.

(H)

Reflects cash paid for the redemption of Class A common stock and the reclassification of cash held in Trust to unrestricted cash for shares of Class A common stock subject to possible redemption that are not redeemed.

Note 4 — Transaction Accounting Adjustments to the CONX Unaudited Pro Forma Condensed Combined Statement of Operations for the Year Ended December 31, 2023

The transaction accounting adjustments included in the unaudited pro forma condensed combined statement of operations for the year ended December 31, 2023 are as follows:

(AA) Reflects depreciation expense in the amount recognized by Seller for the year ended December 31, 2023, based on Seller’s historical carrying value and depreciable life of the Property. The Seller’s carrying value for the Property was $38.47 million with $14.89 million of accumulated depreciation. The depreciable lives of the Property and for subsequent improvements are 40 and 35 years, respectively.

(BB) Reflects total annual rental income for the Property from Seller in the amount of $228,500 per month.

(CC) Reflects the capitalization of certain legal costs attributable to the Transaction. Such costs were previously recorded and expensed when incurred in 2023 pending the occurrence of the Transaction becoming probable.

(DD) Reflects the estimated other transaction costs incurred by the Company and allocated between the costs directly attributable to the Transaction, which are capitalized, and costs not directly attributable to the Transaction, which are expensed. See adjustment (D) under Note 3 above for a tabular presentation of the capitalized transaction costs.

(EE) Reflects depreciation expense for the directly attributable transaction costs incurred by the Company.

(FF) Reflects the reduction of interest income generated by the Company on funds held in the Trust Account that were utilized for the redemption of Class A common stock by investors as part of the Transaction or reclassified to unrestricted cash.

(GG) Reflects the incremental tax expense assuming a combined 24% rate on the unaudited condensed pro forma statement of operations. The combined 24% rate includes the federal statutory rate and state income taxes, net of federal benefit of 21% and 3%, respectively.

Note 5 — Net (Loss) Income per Share

The following table shows the net (loss) income per share calculated using the historical weighted average shares of Common Stock outstanding for the year ended December 31, 2023.

Year Ended December 31, 2023	Assuming No Redemptions			Assuming Actual Redemptions
Pro forma net income (loss)	$	(4,771,613	)	$	(4,771,613	)
Pro forma weighted average shares outstanding – basic and diluted		23,797,364			21,836,002
Net income (loss) per share – basic and diluted	$	(0.20	)	$	(0.22	)
Pro Forma Weighted Average Shares
Public stockholders		5,017,364			3,056,002
Sponsor		18,750,000			18,750,000
Independent Directors		30,000			30,000
Pro forma weighted average shares outstanding, basic and diluted		23,797,364			21,836,002

Cover	May 01, 2024
Document Information [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	May 01, 2024
Current Fiscal Year End Date	--12-31
Entity File Number	001-39677
Entity Registrant Name	CONX Corp.
Entity Central Index Key	0001823000
Entity Tax Identification Number	85-2728630
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	5701 S. Santa Fe Dr.
Entity Address, City or Town	Littleton
Entity Address, State or Province	CO
Entity Address, Postal Zip Code	80120
City Area Code	303
Local Phone Number	472-1542
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Common Class A [Member]
Document Information [Line Items]
Title of 12(b) Security	Class A common stock, par value $0.0001 per share
Warrant [Member]
Document Information [Line Items]
Title of 12(b) Security	Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share

CONX (NASDAQ:CONXW)
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