Page 5 of 9 – SEC Filing
| The Amended and Restated Convertible Note Facility Agreement further provides that all obligations thereunder are and will be: (i) subject to certain terms and exceptions, jointly and severally guaranteed by certain of the Issuer’s subsidiaries and (ii) secured by liens on certain of the assets of the Issuer and the subsidiary guarantors. | |
| As a condition precedent for the closing of the Amended and Restated Convertible Note Facility Agreement, the Issuer entered into an Amended and Restated Stockholder Rights Agreement (the “A&R Stockholder Rights Agreement“) with the Fir Tree Fund and certain other stockholders party thereto (the “Specified Stockholders“). | |
| Pursuant to the A&R Stockholder Rights Agreement, Fir Tree has the right to nominate three individuals (the “Fir Tree Nominees“) for election to the board of directors of the Issuer (the “Board“) for so long as it beneficially owns at least 5% of the issued and outstanding Common Stock (calculated on a fully diluted basis). Accordingly, on March 6, 2017, Messrs. David Proman, Andrew Teno and Andrew Colvin, employees of Fir Tree, were appointed to the Board. For so long Fir Tree has the right to nominate three members of the Board, the Specified Stockholders have agreed in the A&R Stockholder Rights Agreement to vote all shares of Common Stock they hold (based on information and belief, the Specified Stockholders currently hold 4,204,437 shares of Common Stock in the aggregate) in favor of the election of the Fir Tree Nominees as directors and in favor of the conversion of the Notes, which agreement is enforceable by all parties thereto, including by Fir Tree who was granted a proxy to that effect (the “Proxy Right“), the Company and the Specified Stockholders. | |
| The A&R Stockholder Rights Agreement also includes certain approval, preemptive and other rights so long as Fir Tree maintains certain ownership threshold of the Common Stock. | |
| On March 7, 2017, the Fir Tree Fund and the Issuer entered into a Registration Rights Agreement (the “Registration Rights Agreement“), pursuant to which the Issuer granted certain registration rights to Fir Tree with respect to the shares of Common Stock held by the Fir Tree Fund (the “Registrable Securities“), including those shares of Common Stock issuable upon the conversion of the Notes. | |
| The foregoing descriptions are summaries of the Notes, the Amended and Restated Convertible Note Facility Agreement, the A&R Stockholder Rights Agreement and the Registration Rights Agreement and do not purport to be complete and are qualified in their entireties by reference to the full texts thereof. The Amended and Restated Convertible Note and the New Convertible Note which are filed as Exhibit 2 and Exhibit 3 to this Schedule 13D, respectively, are incorporated herein by reference. The Amended and Restated Convertible Note Facility Agreement, the A&R Stockholder Rights Agreement and the Registration Rights Agreement which are referenced as Exhibit 4, Exhibit 5 and Exhibit 6 to this Schedule 13D, respectively, and which are filed as Exhibits 10.1, 4.1 and 4.2 to the Issuer’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 9, 2017 (the “March 2017 Form 8-K“), respectively, are incorporated herein by reference. |
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