If the Company undergoes certain change of control transactions, the Company will be
required to immediately make an offer to repurchase all of the then-outstanding shares of Preferred Stock for cash consideration per share equal to the greater of (i) 100% of the Liquidation Preference, plus accrued and unpaid dividends, plus, if
applicable for a transaction occurring prior to the third anniversary of the Closing, a make-whole premium determined pursuant to a calculation of the present value of the dividends that would have accrued through such anniversary, discounted at a
rate equal to the applicable treasury rate plus 0.50% (the Make-Whole Premium); provided that if the transaction occurs prior to the first anniversary of the Closing, the Make-Whole Premium shall be no greater than $4.0 million and
(ii) the closing sale price of the common stock on the date of such redemption multiplied by the number of shares of common stock issuable upon conversion of the outstanding Preferred Stock.
At any time following the three-year anniversary of the Closing, the Company may redeem the Preferred Stock, in whole or in part, for an
amount in cash equal to the greater of (i) the closing sale price of the common stock on the date the Company delivers such notice multiplied by the number of shares of common stock issuable upon conversion of the outstanding Preferred Stock
and (ii) (x) if the redemption occurs prior to the fourth anniversary of the date of the Closing, 103% of the Liquidation Preference, plus accrued and unpaid dividends, or (y) if the redemption occurs on or after the fourth anniversary of
the date of the Closing, the Liquidation Preference plus accrued and unpaid dividends (the foregoing clauses (i) or (ii), as applicable, the Redemption Price).
At any time following the seven-year anniversary of the Closing, the holders of the Preferred Stock will have the option to require the
Company to redeem any or all of the then-outstanding shares of Preferred Stock for cash consideration equal to the Liquidation Preference, plus accrued and unpaid dividends.
In addition, from and after April 5, 2020, which is 20 calendar days following the date of mailing the information statement relating to
shareholder approval of the voting and conversion features of the Preferred Stock (the Requisite Approval Notice Date), the holders of Preferred Stock will be entitled to either (i) appoint one director to our board of directors or (ii) one non-voting observer to our board of directors. Any director or board observer appointed by the holders of the Preferred Stock will have representation on each committee of the board of the
Company, subject to applicable legal and stock exchange requirements.
Until conversion, the holders of the Preferred Stock will vote
together with the Companys common stock on an as-converted basis and also have rights to vote as a separate class on certain customary matters impacting the Preferred Stock. However, the
Preferred Stock is not convertible into the Companys common stock and is not entitled to the board election rights described above, and the voting power of such Preferred Stock will be limited to 0.99% of the voting power of the common stock
outstanding prior to the transaction, in each case, until the Requisite Approval Notice Date.
The foregoing description of the
Certificate is qualified in its entirety by reference to the full text of the Certificate, which is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference.
This Current Report on Form 8-K contains certain forward-looking statements. All
statements, other than statements of historical facts, included in this Current Report on Form 8-K that address activities, events or developments that the Company expects, believes or anticipates will or may
occur in the future, are forward-looking statements. These statements are based on certain assumptions made by the Company based on its experience and perception of historical trends, current conditions, expected future developments and other
factors it believes are appropriate in the circumstances. Such statements are subject to a number of assumptions, risks and uncertainties, many of which are beyond the control of the Company, which may cause the Companys actual results to
differ materially from those implied or expressed by the forward-looking statements. The Company disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or
otherwise.
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