For as long as the Purchasers own at least 51% of the outstanding shares of the Redeemable Preferred Stock,
the Purchasers will be entitled to designate one board observer to attend meetings of our Board of Directors, except during the term of office of any Preferred Director (as defined below). For so long as the Purchasers own at least 25% but less than
51% of the outstanding shares of the Redeemable Preferred Stock, other than during the term of office of any Preferred Director, the Purchasers will be entitled to receive, upon request, the same materials that a board observer would have received
but will not be entitled to attend meetings of our Board of Directors.
Additional Holder Rights
If we fail to pay in full any cash dividends when due and payable for any quarter after December 31, 2021, then, until such failure is cured by payment in
full of all arrearages: (1) dividends on the Preferred Stock will thereafter accrue at the Dividend Rate plus an additional 0.25% per dividend payment period (1.0% per annum) upon each such failure up to an additional 1.0% per dividend payment
period (4.0% per annum) in the aggregate (the Payment Default Rate); and (2) the amount of such accrued but unpaid cash dividends will constitute arrearages that accrue and accumulate (and compound quarterly) at the Dividend Rate
plus the Payment Default Rate until paid.
Furthermore, if we fail to pay in cash the quarterly dividend in respect of any two consecutive quarters after
December 31, 2021 or if at any time we fail to redeem the Redeemable Preferred Stock in cash as required by the Certificate of Designation in connection with a Holders exercise of its redemption right or in connection with a change of
control, then a majority of the Holders of the then-outstanding shares of Redeemable Preferred Stock, voting as a separate class, will be entitled to elect one director (the Preferred Director) to our Board of Directors to serve until
such time as all such dividends in arrears or redemption payments, as applicable, have been paid in full in cash.
Preferred Stock
Rights and Preferences under the Articles of Incorporation
Our amended and restated articles of incorporation, as amended, provide for certain rights
and preferences of any outstanding class of our preferred stock, including:
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restrictions on: (1) if we have failed to pay dividends on any preferred stock, redemptions or repurchases
of less than all of the then-outstanding preferred stock until such failure is cured; (2) certain distributions on or repurchases of the Common Stock or junior stock; (3) any amendment, alteration or repeal of the preferred stock
provisions of the articles of incorporation or the authorizing resolutions of the preferred stock in a manner that adversely effects the preferences, rights or powers of the preferred stock; and (4) the creation of stock senior to preferred
stock; and
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if dividends payable on any series of preferred stock (including the Redeemable Preferred Stock) remain unpaid in
an aggregate amount equivalent to six full quarterly dividends, then the holders of preferred stock, voting as a separate class, would be entitled to elect two directors. The Certificate of Designation will state that the Preferred Director will
constitute one of those two directors.
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Warrant Agreement
In connection with the Closing, we, Computershare Inc. and Computershare Trust Company, N.A. will enter into a Warrant Agreement to, among other things,
authorize and establish the terms of the Warrants. The Warrants will be exercisable at any time after the earlier of (i) any Change of Control (as defined in the Certificate of Designation) or the commencement of proceedings for the voluntary
or involuntary dissolution, liquidation or winding up of the Company and (ii) the first anniversary of the Closing Date, and from time to time, in whole or in part, until the tenth anniversary of the Closing Date. The Warrants are subject to
customary anti-dilution adjustments.
Registration Rights Agreement
In connection with the Closing, we will enter into a Registration Rights Agreement with the Purchasers at the Closing, pursuant to which we will agree to
provide certain registration and other rights for the benefit of the Purchasers.
The foregoing description of the Purchase Agreement, the Certificate of
Designation, the Redeemable Preferred Stock, the Warrant Agreement and the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed as
Exhibit 10.1 to this Current Report on Form
8-K
and incorporated by reference herein, and the Certificate of Designation, the Form of Registration Rights Agreement and the Form of Warrant Agreement, which are
attached as exhibits to the Purchase Agreement and incorporated by reference herein.
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