Rights Offering
The Purchase Agreement provides that we will use reasonable best efforts to conduct a rights offering (the “Rights Offering”) as promptly as reasonably practical after the Initial Closing. The Rights Offering will be substantially on the terms set forth in the registration statement on Form S-1 filed by us with the SEC on February 13, 2014, as the same has been (and as it may be) amended and supplemented (including each amendment and supplement thereto, the “Registration Statement”). The Stockholder will have the right to participate in the Rights Offering on the same terms as all other stockholders, including with respect to the subscription price. In connection with the Purchase Agreement, the Stockholder agreed that it would only exercise that number of rights it receives in the Rights Offering which represents the number of rights it would have received on the day immediately preceding the Initial Closing. Pursuant to a Standby Purchase Agreement (the “Standby Purchase Agreement”) that we intend to enter into with Double Black Diamond, L.P., an affiliate of the Stockholder (the “Standby Purchaser”) prior to the commencement of the Rights Offering, the Standby Purchaser will serve as the standby purchaser with respect to the Rights Offering and will generally have the right to purchase any unsubscribed shares (other than shares the Stockholder has agreed not to purchase pursuant to the exercise of its rights as described above).
The Purchase Agreement further provides that, following the closing of the Rights Offering, the Stockholder will purchase a number of newly issued additional shares of Common Stock such that (after taking into account the Initial Closing and the closing of the Rights Offering, including any shares of Common Stock purchased by the Stockholder and its affiliates in the Rights Offering, including as Standby Purchaser) the Stockholder’s and its affiliates’ voting percentage of Common Stock equals 69% on a fully-diluted basis.
In connection with the Purchase Agreement, we, Double Black Diamond and Black Diamond entered into a Stockholders’ Agreement, dated as of August 18, 2014 (the “Stockholders’ Agreement”) pursuant to which, among other things, we granted the Stockholder approval rights with respect to certain transactions, including the incurrence of indebtedness over specified amounts, the sale of assets over specified amounts, declaration of dividends, loans, capital contributions to or investments in any third party over specified amounts, changes in the size of our board of directors or changes in our chief executive officer. In addition, the Stockholder agreed that until the earlier of the fifth anniversary of the Initial Closing or the date it owns less than 40% of the outstanding shares of Common Stock it will not increase its voting percentage of Common Stock to greater than 76% or cause us to engage in any buybacks in excess of 3% of the then outstanding shares of Common Stock without offering to acquire all of the then-outstanding Common Stock at the same price and on the same terms and conditions. The Stockholder further agreed that, until the earlier of the fifth anniversary of the Initial Closing or the date it owns less than 40% of the outstanding shares of Common Stock, it will not sell shares of Common Stock to any purchaser that would result in such purchaser having a voting percentage of Common Stock in excess of 40% (and with neither the Stockholder and its affiliates nor any other holder of Common Stock and its affiliates holding a voting percentage in excess of 40%) unless such purchaser contemporaneously makes a binding offer to acquire all of our then-outstanding Common Stock, at the same price and on the same terms and conditions as the purchase of shares from the Stockholder. The Stockholder also agreed that, until the earlier of the eighth anniversary of the Initial Closing or the date it owns less than 40% of the outstanding shares of Common Stock, the Stockholder will not engage in a transaction as described in Rule 13e-3 under the Exchange Act without offering to acquire all of the then-outstanding Common Stock at the same price and on the same terms and conditions. Additionally, until the earlier of the eighth anniversary of the Initial Closing or the date it owns less than 40% of the outstanding shares of Common Stock, the Stockholder agreed to maintain at least two directors who are not affiliates of the Stockholder or us (the “Non-Affiliated Directors”), and agreed that any related party transaction or deregistration of the Common Stock from SEC reporting requirements requires the approval of the Non-Affiliated Directors. The Stockholders’ Agreement also contains a right for the Stockholder to serve as the exclusive standby purchaser for any additional rights offerings prior to September 6, 2016, and a pre-emptive right to purchase its pro rata share of any additional offerings other than such rights offerings by us prior to such date.
The Stockholders’ Agreement also provides that, until the second anniversary of the Initial Closing, we will not seek, negotiate or consummate any sale of Common Stock (with certain customary exceptions), except through one or more rights offerings substantially on the same structural terms as the Rights Offering. In addition, the Stockholder agreed that until the earlier of the fifth anniversary of the Initial Closing or the date it owns less than 40% of the outstanding shares of Common Stock, it would provide support to us in various ways, including with respect to sourcing financing and other business opportunities.
Additionally, in connection with the Purchase Agreement and the transactions described above (collectively, the “Transactions”), effective as of the Initial Closing, William Clifford, Michael Margolis and John Nemelka resigned from our board of directors and we agreed to appoint the following persons nominated by the Stockholder to fill the vacancies created: Christopher W. Haga, D. Blair Baker and Edward B. Stead. Mr. Stead was appointed as a Class II director for a term expiring in 2017, and Mr. Baker and Mr. Haga were appointed as Class III directors for terms expiring in 2014. Information about the appointees to the board of directors is provided under the heading “Changes to the Board of Directors” below.
If the Rights Offering is completed and each of our stockholders as of the record date purchases the full number of shares to which it is entitled, we will issue an additional 14,534,884 shares of Common Stock in the Rights Offering, as a result of which we will have an aggregate of 113,617,778 shares of Common Stock issued and outstanding. In such an event, funds affiliated with Carlson would beneficially own in the aggregate approximately 63.9% of our Common Stock (including the 1,000,000 shares of Common Stock underlying the existing warrant held by the Standby Purchaser).
If none of our stockholders as of the record date purchases shares in the Rights Offering but we consummate the Rights Offering, then the Standby Purchaser will purchase, pursuant to the Standby Purchase Agreement, 14,534,884 shares in the Rights Offering and, together with other affiliates of Carlson, would own in the aggregate 82,591,984 shares of our Common Stock (out of 113,617,778 shares outstanding and excluding the 1,000,000 shares of Common Stock underlying the existing warrant held by the Standby Purchaser), which would equal approximately 72.7% of our then issued and outstanding shares of Common Stock.
If the Standby Purchaser purchases 14,534,884 shares pursuant to the Standby Purchase Agreement because no other stockholder exercises its rights in the Rights Offering, and if the Standby Purchaser were to exercise its existing warrant to purchase 1,000,000 shares of Common Stock, affiliates of Carlson, including the Standby Purchaser, would own in the aggregate 72.9% of our then issued and outstanding shares of Common Stock.
