Page 6 of 10 SEC Filing Pursuant to
an investor rights agreement (the “Investor Rights Agreement”), dated as of March 1, 2016
(the “Closing Date”), by and between the Company and Cleveland Investor, the Company reduced the size of
the Board of Directors of the Company (the “Board”) from twelve directors to eleven directors and granted
Cleveland Investor certain minority rights relating to Board representation and other matters. Pursuant to the Investor
Rights Agreement, the Board consists of six incumbent directors of the Company and three new directors appointed by
Cleveland Investor (one of whom will act as Chairman of the Board so long as the 50% Ownership Requirement (as defined below)
is satisfied), with two new independent directors to be jointly appointed by the Company and Cleveland Investor. Pursuant to
the Certificate of Amendment of the Company’s Restated Certificate of Incorporation with respect to the Preferred
Stock (the “Certificate of Amendment”) and the Investor Rights Agreement, Cleveland Investor will continue
to be entitled to elect: (i) three directors to the Board, so long as Cleveland Investor continues to beneficially own shares
of Preferred Stock (and/or shares of Common Stock) that represent on an as-converted basis at least 75% of the shares
of Preferred Stock owned by Cleveland Investor as of the Closing Date on an as-converted basis (the
“Initial Shares”); (ii) two directors to the Board, so long as Cleveland Investor continues to
beneficially own shares of Preferred Stock (and/or shares of Common Stock) that represent on an as-converted basis at least
50% but less than 75% of the Initial Shares (the “50% Ownership Requirement”); and (iii) one director to
the Board, so long as Cleveland Investor continues to beneficially own shares of Preferred Stock (and/or shares of Common
Stock) that represent on an as-converted basis at least 25% but less than 50% of the Initial Shares (the “25%
Ownership Requirement”). Until Cleveland Investor no longer meets the 25% Ownership Requirement, subject to
certain exceptions and to satisfaction by such director designees of independence and other customary qualifications,
Cleveland Investor will have the right to have one of its director designees serve on each committee of the Board. The
representation afforded by the appointment of Cleveland Investor’s representative(s) on the Board may allow the
Reporting Persons to have influence over the corporate activities of the Company, including activities that may relate to
items described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Pursuant to the Investor
Rights Agreement, Cleveland Investor, subject to maintaining certain levels of beneficial ownership of Preferred Stock and/or Common
Stock, (a) has consent rights over certain actions taken by the Company, including increasing the size of the Board, reinstating
the Company’s quarterly Common Stock dividend and incurring indebtedness in excess of certain thresholds, and (b) is required
to vote its shares of Preferred Stock and Common Stock in favor of (i) each director nominated to the Board, (ii) the Company’s
“say-on-pay” proposal and any other approved equity compensation proposals, and (iii) ratification of the Company’s
independent registered public accounting firm.
Pursuant to the Investor
Rights Agreement, Cleveland Investor and its affiliates are subject to certain standstill restrictions, including, among other
things, that Cleveland Investor and its affiliates are restricted from acquiring additional securities of the Company in excess
of a certain percentage, subject to certain exceptions. The standstill restrictions will terminate upon the occurrence of certain
events, including upon the earlier of the date on which (a) Cleveland Investor no longer meets the 25% Ownership Requirement or
(b)(i) the 25% Ownership Requirement remains satisfied (and the 50% Ownership Requirement is not satisfied), (ii) no Cleveland
Investor designee serves on the Board, and (iii) Cleveland Investor has irrevocably waived its director nomination and consent
rights. Subject to certain customary exceptions, Cleveland Investor is restricted from transferring shares of Preferred Stock,
shares of Series D Preferred Stock (as defined below) or shares of Common Stock issued upon conversion of the Preferred Stock until
the 24-month anniversary of the Closing Date.
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Pursuant to
an investor rights agreement (the “Investor Rights Agreement”), dated as of March 1, 2016
(the “Closing Date”), by and between the Company and Cleveland Investor, the Company reduced the size of
the Board of Directors of the Company (the “Board”) from twelve directors to eleven directors and granted
Cleveland Investor certain minority rights relating to Board representation and other matters. Pursuant to the Investor
Rights Agreement, the Board consists of six incumbent directors of the Company and three new directors appointed by
Cleveland Investor (one of whom will act as Chairman of the Board so long as the 50% Ownership Requirement (as defined below)
is satisfied), with two new independent directors to be jointly appointed by the Company and Cleveland Investor. Pursuant to
the Certificate of Amendment of the Company’s Restated Certificate of Incorporation with respect to the Preferred
Stock (the “Certificate of Amendment”) and the Investor Rights Agreement, Cleveland Investor will continue
to be entitled to elect: (i) three directors to the Board, so long as Cleveland Investor continues to beneficially own shares
of Preferred Stock (and/or shares of Common Stock) that represent on an as-converted basis at least 75% of the shares
of Preferred Stock owned by Cleveland Investor as of the Closing Date on an as-converted basis (the
“Initial Shares”); (ii) two directors to the Board, so long as Cleveland Investor continues to
beneficially own shares of Preferred Stock (and/or shares of Common Stock) that represent on an as-converted basis at least
50% but less than 75% of the Initial Shares (the “50% Ownership Requirement”); and (iii) one director to
the Board, so long as Cleveland Investor continues to beneficially own shares of Preferred Stock (and/or shares of Common
Stock) that represent on an as-converted basis at least 25% but less than 50% of the Initial Shares (the “25%
Ownership Requirement”). Until Cleveland Investor no longer meets the 25% Ownership Requirement, subject to
certain exceptions and to satisfaction by such director designees of independence and other customary qualifications,
Cleveland Investor will have the right to have one of its director designees serve on each committee of the Board. The
representation afforded by the appointment of Cleveland Investor’s representative(s) on the Board may allow the
Reporting Persons to have influence over the corporate activities of the Company, including activities that may relate to
items described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Pursuant to the Investor
Rights Agreement, Cleveland Investor, subject to maintaining certain levels of beneficial ownership of Preferred Stock and/or Common
Stock, (a) has consent rights over certain actions taken by the Company, including increasing the size of the Board, reinstating
the Company’s quarterly Common Stock dividend and incurring indebtedness in excess of certain thresholds, and (b) is required
to vote its shares of Preferred Stock and Common Stock in favor of (i) each director nominated to the Board, (ii) the Company’s
“say-on-pay” proposal and any other approved equity compensation proposals, and (iii) ratification of the Company’s
independent registered public accounting firm.
Pursuant to the Investor
Rights Agreement, Cleveland Investor and its affiliates are subject to certain standstill restrictions, including, among other
things, that Cleveland Investor and its affiliates are restricted from acquiring additional securities of the Company in excess
of a certain percentage, subject to certain exceptions. The standstill restrictions will terminate upon the occurrence of certain
events, including upon the earlier of the date on which (a) Cleveland Investor no longer meets the 25% Ownership Requirement or
(b)(i) the 25% Ownership Requirement remains satisfied (and the 50% Ownership Requirement is not satisfied), (ii) no Cleveland
Investor designee serves on the Board, and (iii) Cleveland Investor has irrevocably waived its director nomination and consent
rights. Subject to certain customary exceptions, Cleveland Investor is restricted from transferring shares of Preferred Stock,
shares of Series D Preferred Stock (as defined below) or shares of Common Stock issued upon conversion of the Preferred Stock until
the 24-month anniversary of the Closing Date.
