Page 4 of 6 – SEC Filing
| In accordance with the terms of the Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (the “Certificate of Designation“) for the Series A Preferred Stock, the Series A Preferred Stock is initially convertible, at the option of the holder at any time, into a number of shares of Common Stock determined by dividing the Stated Value plus any dividends accrued but unpaid thereon by the conversion price of $1.15 (subject to adjustment for stock splits, combinations, certain distributions or similar events). |
| Holders of Series A Preferred Stock will be entitled to cumulative dividends payable semi-annually in arrears at a rate of (i) 10% per year, if paid in cash, or (ii) 12% per year, if, at the election of the Issuer, paid through the issuance of additional shares of Series A Preferred Stock. Holders of Series A Preferred Stock will also be entitled to receive dividends or distributions declared or paid on Common Stock on an as-converted basis. Holders of Series A Preferred Stock will be entitled to vote with holders of Common Stock and are entitled to one vote per share of Common Stock into which a share of Series A Preferred Stock is then-convertible on any matter on which holders of the capital stock of the Company are entitled to vote. The Issuer may redeem shares of Series A Preferred Stock at any time in cash at a price per share equal to the greater of (i) the Stated Value plus any accrued and unpaid dividends thereon and (ii) the product of 1.5 times the Stated Value. | |
| The foregoing descriptions are summaries of the Securities Purchase Agreement and the Certificate of Designation, and do not purport to be complete and are qualified in their entireties by reference to the full texts thereof. The Securities Purchase Agreement and the Certificate of Designation, which are referenced as Exhibit 13, Exhibit 14 to this Schedule 13D, respectively, and which are filed as Exhibits 10.1 and 3.1, respectively, to the Issuer’s Current Report on Form 8-K filed with the SEC on April 2, 2018 (the “April 2018 Form 8-K“) are incorporated herein by reference. | |
| In October 2017, Andrew Colvin and David Proman, employees of Fir Tree, resigned from the Board and Brian R. Stewart and Todd R. Snyder were designated by Fir Tree pursuant to the A&R Stockholder Rights Agreement to replace them. |
| Item 5. | INTEREST IN SECURITIES OF THE ISSUER |
| Item 5 of the Schedule 13D is hereby amended and restated, as follows: | |
| (a) | See rows (11) and (13) of the cover pages to this Schedule 13D for the aggregate number of shares of Common Stock and percentages of the shares of Common Stock beneficially owned by the Reporting Person (see also the Proxy Right described in Item 4 of Amendment No. 3). The percentages used in this Schedule 13D are calculated: (i) based upon an aggregate of 74,596,116 shares of Common Stock outstanding as of March 29, 2018, as set forth in the Securities Purchase Agreement, and (ii) assumes the conversion of the Series A Preferred Stock issued to the Fir Tree Funds. |
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