Page 8 of 10 – SEC Filing
The following constitutes
Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule
13D as specifically set forth herein.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following:
On March 7, 2018, Lion Point,
Lion Point Capital, Lion Point Capital GP, Lion Point Holdings GP, Didric Cederholm and Jim Freeman (collectively, the “Lion
Point Group”) entered into a letter agreement with the Issuer (the “Agreement”) regarding the composition of
the Issuer’s Board of Directors (the “Board”).
Pursuant to the terms
of the Agreement, the Issuer agreed, among other things: (i) within five business days following the execution of the Agreement,
to increase the size of the Board from eight to 11 members and appoint James P. Lederer, John E. Major and Krishna Rangasayee (the
“New Directors”) to the Board; (ii) reduce the size of the Board to nine members as of the 2018 Annual Meeting of Stockholders
(the “2018 Annual Meeting”) and nominate nine individuals (including the New Directors) for election at the 2018 Annual
Meeting; (iii) to use its reasonable best efforts to hold the 2018 Annual Meeting no later than June 15, 2018; (iv) to appoint
at least one New Director to each of the Nominating and Governance Committee and the Audit Committee within three business days
following their appointment to the Board; (v) within 10 days following the appointment of the New Directors to the Board, to reconstitute
the Compensation Committee so that it is composed of four directors, consisting of two of the New Directors and two directors serving
on the Board as of March 7, 2018; and (vi) to consult with the Lion Point Group regarding an amendment to the Compensation Committee’s
charter.
In the event that either
of Messrs. Lederer or Major or any Replacement Director (as defined in the Agreement) is unable or unwilling to serve as a director,
resigns or is removed as a director prior to the expiration of the Restricted Period (as defined below and in the Agreement), and
at such time the Lion Point Group beneficially owns Net Long Shares (as defined in the Agreement) representing in the aggregate
at least the lesser of (a) five percent of the Issuer’s then-outstanding common stock and (b) 6,168,284 shares, then the
Lion Point Group will have the ability to recommend one or more replacement director candidates in accordance with the Agreement
(any such replacement director candidate, when appointed to the Board, will be referred to as a “Replacement Director”).
Any Replacement Director must (i) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld);
(ii) qualify as “independent” pursuant to Nasdaq Stock Market listing standards; (iii) have the relevant
financial and business experience to be a director of the Issuer; (iv) satisfy the publicly disclosed guidelines and policies
with respect to service on the Board; and (v) be independent of Lion Point (for the avoidance of doubt, the nomination by
Lion Point of such person to serve on the board of any other company will not (in and of itself) cause such person to not be deemed
independent of Lion Point).
The Agreement further provides
that during the Restricted Period, at each annual or special meeting of the Issuer’s stockholders at which a proposal is
included relating to the election or removal of directors, the Lion Point Group will (a) cause all Voting Securities beneficially
owned by the Lion Point Group to be present for quorum purposes; and (b) vote all Voting Securities beneficially owned by
the Lion Point Group on any proposals relating to the election or removal of directors in a manner that is consistent with the
recommendation of the Board. At the 2018 Annual Meeting, the Lion Point Group will vote in favor of the Board’s slate
of director nominees and in accordance with the Board’s recommendation with respect to any other proposal presented at the
2018 Annual Meeting, except if, as of the date of the 2018 Annual Meeting, Institutional Shareholder Services Inc. (“ISS”)
and Glass Lewis & Co., LLC (“Glass Lewis”) both recommend a vote “against” or “abstain”
on Issuer’s “say-on-pay” proposal or any other proposal presented at the 2018 Annual Meeting (other than any
proposal relating to the election or removal of directors), then the Lion Point Group will be permitted to vote in accordance with
the ISS and Glass Lewis recommendations on that proposal.
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