Page 10 of 15 – SEC Filing
Convertible Notes that are deemed, in accordance
with the Convertible Notes Indenture, to have been converted in connection with a “Fundamental Change” (as defined in
the Convertible Notes Indenture) are convertible, for each $1.00 principal amount of the Convertible Notes, into that number of
shares of Common Stock equal to the greater of (a) $1.00 divided by the then applicable conversion price and (b) $1.00 divided
by the stock price with respect to such Fundamental Change, subject to other provisions of the Convertible Notes Indenture.
The Convertible Notes are guaranteed,
jointly and severally, by certain subsidiaries of the Issuer. The Convertible Notes and the related guarantees are secured by a
lien on substantially all of the Issuer’s and the guarantors’ assets, subject to certain exceptions pursuant to certain collateral
documents pursuant to the Convertible Notes Indenture. The terms of the Convertible Notes contain numerous covenants imposing financial
and operating restrictions on the Issuer’s business. These covenants place restrictions on the Issuer’s ability and the ability
of its subsidiaries to, among other things, pay dividends, redeem stock or make other distributions or restricted payments; incur
indebtedness or issue certain stock; make certain investments; create liens; agree to certain payment restrictions affecting certain
subsidiaries; sell or otherwise transfer or dispose assets; enter into transactions with affiliates; and enter into sale and leaseback
transactions.
The Convertible Notes may not be redeemed
by the Issuer in whole or in part at any time, subject to certain exceptions provided under the Convertible Notes Indenture. In
addition, if a Fundamental Change occurs at any time, each holder of any Convertible Notes has the right to require the Issuer
to repurchase such holder’s Convertible Notes for cash at a repurchase price equal to 100% of the principal amount thereof, together
with accrued and unpaid interest thereon, subject to certain exceptions.
The Issuer must use the net proceeds
of material sales of collateral, which proceeds are not used for other permissible purposes, to make an offer of repurchase to
holders of the Convertible Notes. Indebtedness with respect to the Convertible Notes is subject to acceleration upon the occurrence
of specified defaults or events of default, including failure to pay principal or interest, the inaccuracy of any representation
or warranty of any obligor under the Convertible Notes, failure by an obligor under the Second Lien Notes to perform certain covenants,
the invalidity or impairment of the Indenture Agent’s lien on its collateral or of any applicable guarantee, and certain adverse
bankruptcy-related and other events.
Interest on the Second Lien Notes accrues
at the rate of 5.00%, except that the Issuer may, in certain circumstances, pay at the rate of 7.00% in kind.
The foregoing summary of the Convertible Notes
Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Convertible
Notes Indenture filed herewith as Exhibit 3, which is incorporated herein by reference.
Joint Filing Agreement
Pursuant to Rule 13d-1(k) promulgated
under the Exchange Act, the Reporting Persons have entered into an agreement on September 11, 2017 with respect to the joint filing
of this Schedule 13D and any amendment or amendments thereto (the “Joint Filing Agreement“). The Joint Filing
Agreement is attached hereto as Exhibit 4 and incorporated herein by reference.
