A “Qualified Acquirer” means any entity that (i) has its common equity listed on the New York Stock Exchange, the NYSE American, Nasdaq Global Market or Nasdaq Global Select Market, or Toronto Stock Exchange, (ii) has an aggregate equity market capitalization of at least $350,000,000, and (iii) has a ”public float” (as defined in Rule 12b-2 under the Securities Act of 1933) of at least $250,000,000 in each case, as determined by the calculation agent based on the last reported sale price of such common equity on date of the signing of the definitive agreement in respect of the relevant Common Stock Change Event.
A “Common Stock Change Event” means the occurrence of any: (i) recapitalization, reclassification or change of the Company’s Common Stock (other than (x) changes solely resulting from a subdivision or combination of the common stock, (y) a change only in par value or from par value to no par value or no par value to par value and (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities); (ii) consolidation, merger, combination or binding or statutory share exchange involving the Company; (iii) sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any person; or (iv) other similar event, and, as a result of which, the common stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing.
A “Company Conversion Rate” means, in respect of any Qualified Merger, the greater of (a) the relevant Conversion Rate, (b) $1,000 divided by the Company Conversion VWAP, and (c) the lowest rate that would cause the MOIC Condition to be satisfied with respect to the related Qualified Merger Conversion.
A “Company Conversion VWAP” means, in respect of any Qualified Merger, the average of daily VWAP over the five (5) VWAP Trading Days prior to the earlier of signing or public announcement (by any party, and whether formal or informal, including for the avoidance of doubt any media reports thereof) of a definitive agreement in respect of such Qualified Merger.
The “MOIC Condition” means, with respect to any potential Qualified Merger Conversion, MOIC is greater than or equal to the MOIC Required Level. The “MOIC Required Level” means (x) prior to approval of the Share Issuance Proposal, $1,450.00 or (y) after approval of the Share Issuance Proposal, $1,350.00. “MOIC” means, with respect to any potential Qualified Merger Conversion, an amount equal to the aggregate return on a hypothetical Note with $1,000 face amount, issued on the Issue Date, from the Issue Date through the potential Qualified Merger Conversion Date, including (x) the aggregate amount of any cash interest paid on such hypothetical Note from the Issue Date through the potential Qualified Merger Conversion Date, (y) the aggregate fair market value of any Conversion Consideration that would be received by the Holder of such hypothetical Note on the relevant Qualified Merger Conversion Date and (z) the aggregate fair market value of any Conversion Consideration that would be received on the relevant Qualified Merger Conversion Date by the Holder of any PIK Notes issued in respect of (or the relevant increase in value of) such hypothetical Note.
The Share Issuance Proposal is Contingent upon Approval of the Charter Amendment Proposal
The Share Issuance Proposal and the benefits the Company obtains upon approval of the Share Issuance Proposal at the Annual Meeting is contingent upon, and subject to, approval of the Charter Amendment Proposal. This is due to the fact that the Company currently does not have sufficient shares of Common Stock authorized under its Restated Certificate of Incorporation to effectuate the related benefits under the Indenture. For this reason, the Charter Amendment Proposal, which increases the authorized shares of Common Stock available for issuance, is necessary.
If the Charter Amendment Proposal is not approved at the Annual Meeting, the Share Issuance Proposal will not become effective and the related benefits under the Indenture will not become effective, even if the Share Issuance Proposal is approved by the stockholders at the Annual Meeting. For this reason, stockholders are also encouraged to vote in favor of the Charter Amendment Proposal.
Stockholders Who have Agreed to Vote in Favor of the Share Issuance Proposal
Pursuant to the terms and conditions of the Voting and Support Agreement, William Monroe, MSD Partners and GCM, as well as members of our Board and executive management, have agreed to vote in favor of the Share Issuance