Item 4 of the Schedule 13D is hereby amended and restated to read as follows:
The Reporting Persons acquired the Common Stock reported herein for investment purposes. The Reporting Persons also have acquired $86,071,544 par value of the Issuer’s 8.50% Senior Secured Second Lien Notes due 2023 (the “Notes”) on behalf of the Accounts.
On October 21,2019, Issuer announced the commencement of (i) a cash tender offer (the “Tender Offer”) to purchase up to $200,000,000 of the Notes at a purchase price of $1,060 per $1,000 principal amount of Notes validly tendered; (ii) an exchange offer (the “Exchange Offer”) to eligible holders of Notes to exchange up to $70,754,716 in aggregate principal amount of Notes for newly issued 6.5% Series A Perpetual Cumulative Convertible Preferred Stock, par value $0.001 per share (the “Preferred Stock”); (iii) a related solicitation of consents to adopt certain amendments to the indenture governing the Notes (the “Consent Solicitation”) and (iv) an offer to eligible holders of Notes that elect to participate in the Exchange Offer to subscribe to purchase additional shares of Preferred Stock (the “Subscription Offer” and, together with the Tender Offer and Exchange Offer, the “Offers”).
In addition, on October 21,2019, certain Accounts (collectively, the “Backstop Parties”) entered into a backstop commitment agreement with the Issuer (the “Backstop Agreement”), pursuant to which the terms of the Backstop Agreement, the Backstop Parties have agreed, subject to the terms and conditions set forth therein, to (i) tender (and not withdraw) all Notes held by the Backstop Parties in the Exchange Offer (and, accordingly, deliver consents in respect of all such Notes in the Consent Solicitation and tender all such Notes that are not accepted for exchange in the Exchange Offer in the Tender Offer) and (ii) exchange additional Notes for and/or purchase all shares of the Preferred Stock offered for exchange or purchase pursuant to the Exchange Offer and the Subscription Offer, respectively, but not issued pursuant to the terms of the Exchange Offer or the Subscription Offer, as applicable.
The Backstop Parties’ obligation to backstop the Exchange Offer and the Subscription Offer is subject to certain conditions, including satisfaction (or waiver) of all conditions to the Offers, including the receipt of consents from the holders of a majority of the outstanding Notes in the Consent Solicitation.
The foregoing description of the Backstop Agreement is not complete and is qualified by reference to the full text of the Backstop Agreement, a copy of which is incorporated by reference as Exhibit 99.2 to this Schedule 13D and is incorporated herein by reference.
The Reporting Persons intend to review their investment in the Issuer on a continuing basis and may from time to time and at any time in the future formulate plans or proposals depending on various factors, including, without limitation, the outcome of the transactions referenced above, the Issuer’s financial position and strategic direction, actions taken by the Board, price levels of the Issuer’s securities, other investment opportunities available to the Reporting Persons, conditions in the securities market and general economic and industry conditions, and take such actions with respect to the investment in the Issuer as they deem appropriate. These actions may, subject to the
obligations set forth above, include: (i) acquiring additional shares of Common Stock and/or other equity, debt, notes, other securities, or derivative or other instruments that are based upon or relate to the value of securities of the Issuer (collectively, “Securities”) in the open market or otherwise; (ii) disposing of any or all of their Securities in the open market or otherwise; (iii) engaging in any hedging or similar transactions with respect to the Securities; or (iv) proposing or considering one or more of the actions described in subsections (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons undertake no obligation to make additional disclosures except to the extent required by law.