LONG-TERM DEBT AND OTHER FINANCING ARRANGEMENTS | 12 Months Ended |
Dec. 31, 2014 |
Debt Disclosure [Abstract] | |
LONG-TERM DEBT AND OTHER FINANCING ARRANGEMENTS | LONG-TERM DEBT AND OTHER FINANCING ARRANGEMENTS |
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The principal amount and carrying value of long-term debt consists of the following (in thousands): |
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| December 31, 2014 | | December 31, 2013 |
| Principal | | Carrying | | Principal | | Carrying |
Amount | Value | Amount | Value |
Facility Agreement | $ | 582,296 | | | $ | 582,296 | | | $ | 586,342 | | | $ | 586,342 | |
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Thermo Loan Agreement | 68,154 | | | 32,971 | | | 60,383 | | | 22,854 | |
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8.00% Convertible Senior Notes Issued in 2013 | 22,799 | | | 14,823 | | | 46,971 | | | 26,291 | |
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8.00% Convertible Senior Unsecured Notes Issued in 2009 | — | | | — | | | 51,652 | | | 33,795 | |
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Total Debt | 673,249 | | | 630,090 | | | 745,348 | | | 669,282 | |
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Less: Current Portion | 6,450 | | | 6,450 | | | 4,046 | | | 4,046 | |
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Long-Term Debt | $ | 666,799 | | | $ | 623,640 | | | $ | 741,302 | | | $ | 665,236 | |
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The principal amounts shown above include payment of in-kind interest, if any. The carrying value is net of any discounts to the loan amounts at issuance, including accretion, as further described below. The current portion of long-term debt represents the scheduled semi-annual principal repayments under the Facility Agreement due within one year of the balance sheet date. |
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Amended and Restated Facility Agreement |
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On July 31, 2013, the Company entered into the Global Deed of Amendment and Restatement (the “GARA”) with Thermo, the Company's domestic subsidiaries (the “Subsidiary Guarantors”), a syndicate of bank lenders, including BNP Paribas, Société Générale, Natixis, Credit Agricole Corporate and Investment Bank and Credit Industrial et Commercial as arrangers and BNP Paribas as the security agent and COFACE Agent, providing for the amendment and restatement of the Former Facility Agreement (described below) and certain related credit documents (the amended and restated facility agreement is herein referred to as the "Facility Agreement"). The GARA became effective on August 22, 2013 and, among other things, waived all of the Company's defaults under the Former Facility Agreement and restructured the financial covenants. |
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The Facility Agreement is scheduled to mature in December 2022. Semi-annual principal repayments began in December 2014. The Facility Agreement bears interest at a floating LIBOR rate plus a margin of 2.75% through June 2017, increasing by an additional 0.5% each year to a maximum rate of LIBOR plus 5.75%. Ninety-five percent of the Company's obligations under the Facility Agreement are guaranteed by COFACE, the French export credit agency. The Company's obligations under the Facility Agreement are guaranteed on a senior secured basis by all of the Company's domestic subsidiaries and are secured by a first priority lien on substantially all of the assets of the Company's domestic subsidiaries (other than their FCC licenses), including patents and trademarks, 100% of the equity of the Company's domestic subsidiaries and 65% of the equity of certain of the Company's foreign subsidiaries. |
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The Facility Agreement contains customary events of default and requires that the Company satisfy various financial and non-financial covenants. If the Company violates any of these covenants and is unable to obtain waivers, it would be in default under the agreement and payment of the indebtedness could be accelerated. The acceleration of the Company's indebtedness under one agreement may permit acceleration of indebtedness under other agreements that contain cross-acceleration provisions. The covenants under the Facility Agreement limit the Company's ability to, among other things, incur or guarantee additional indebtedness; make investments, acquisitions or capital expenditures; repurchase or redeem capital stock or subordinated indebtedness; grant liens on its assets; incur restrictions on the ability of its subsidiaries to pay dividends or to make other payments to the Company; enter into transactions with its affiliates; merge or consolidate with other entities or transfer all or substantially all of its assets; and transfer or sell assets. |
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The compliance calculations of the financial covenants defined in the Facility Agreement include certain cash funds contributed to the Company from the issuance of the Company's common stock and/or Subordinated Indebtedness. These funds are referred to as "Equity Cure Contributions" and may be funded subsequent to the covenant measurement dates in order to achieve compliance with the covenants described above subject to the conditions set forth in the Facility Agreement. Each Equity Cure Contribution must be made in a minimum amount of $10 million with no maximum amount for each measurement period or in the aggregate for all periods until the date that such funding is no longer allowed by the Facility Agreement (which will be the case for any period after the measurement period ending June 30, 2017). Equity Cure Contributions that are in excess of the amounts required to achieve the required covenant calculation, as a result of the $10 million minimum per funding, may be applied to determining compliance with future covenant calculations. In February 2015, the Company drew $10 million under its agreement with Terrapin (described below). These funds were deemed an Equity Cure Contribution under the Facility Agreement and were used in the Company's calculation of compliance with certain financial covenants under the Facility Agreement. As a result, the Company was in compliance with its financial and non-financial covenants as of December 31, 2014. |
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The Facility Agreement requires that: |
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• | the Company maintain funds in a debt service reserve account. The use of the funds in this account is restricted to making principal and interest payments under the Facility Agreement. As of December 31, 2014, the balance in the debt service reserve account was $37.9 million and is classified as restricted cash. | | | | | | | | | | | | | | |
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• | the Company's capital expenditures do not exceed $18.8 million for the full year 2015, $13.2 million for the full year 2016 and $15.0 million for each year thereafter. Pursuant to the terms of the Facility Agreement, if, in any relevant period, the capital expenditures are less than the permitted amount for that relevant period, a permitted excess amount may be added to the maximum amount of capital expenditures in the next period; | | | | | | | | | | | | | | |
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• | the Company maintain at all times a minimum liquidity balance of $4.0 million; | | | | | | | | | | | | | | |
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• | the Company achieve for each period the following minimum adjusted consolidated EBITDA (as defined in the Facility Agreement)(amounts in thousands): | | | | | | | | | | | | | | |
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Period | | Minimum Amount | | | | | | | | | | | |
7/1/14-12/31/14 | | $ | 14,062 | | | | | | | | | | | | |
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1/1/15-6/30/15 | | $ | 16,958 | | | | | | | | | | | | |
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7/1/15-12/31/15 | | $ | 23,469 | | | | | | | | | | | | |
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1/1/16-6/30/16 | | $ | 24,502 | | | | | | | | | | | | |
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7/1/16-12/31/16 | | $ | 32,426 | | | | | | | | | | | | |
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The minimum adjusted consolidated EBITDA Minimum Amount changes semi-annually through December 31, 2022, for which measurement period the Minimum Amount is $65.7 million. |
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• | the Company maintain a minimum debt service coverage ratio of 1.00:1; and | | | | | | | | | | | | | | |
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• | the Company maintain a maximum net debt to adjusted consolidated EBITDA ratio of 27.00:1 for the December 31, 2014 measurement period, decreasing gradually each semi-annual period until the requirement equals 2.50:1 for the five semi-annual measurement periods leading up to December 31, 2022. | | | | | | | | | | | | | | |
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Pursuant to the GARA, |
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• | In August 2013, the Company paid the lenders a restructuring fee plus an additional underwriting fee to COFACE in the aggregate amount of approximately $13.9 million, representing 40% of the total restructuring and underwriting fee; the balance of $20.8 million is due no later than December 31, 2017. This remaining amount is included in noncurrent liabilities on the December 31, 2014 consolidated balance sheet. The Company also paid all outstanding incurred transaction expenses for the Lenders. | | | | | | | | | | | | | | |
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• | In August 2013, the Company drew the remaining approximately $0.7 million not previously borrowed under the Former Facility Agreement for certain milestone payments due to Thales for the construction of the second-generation satellites. | | | | | | | | | | | | | | |
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• | In August 2013, all amounts remaining under the Thermo Contingent Equity Account (approximately $1.1 million) and approximately $0.2 million in the Debt Service Reserve Account were paid to the Company's launch services provider for certain costs for the launch of its second-generation satellites. | | | | | | | | | | | | | | |
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• | Thermo confirmed its obligations under the Equity Commitment, Restructuring and Consent Agreement dated as of May 20, 2013 to make, or arrange for third parties to make, cash contributions to the Company in exchange for equity, subordinated convertible debt or other equity-linked securities of $20.0 million on or prior to December 26, 2013, and an additional amount of up to $20.0 million on or prior to December 31, 2014. See further discussion below on the details of the Consent Agreement and subsequent cash contributions to the Company. | | | | | | | | | | | | | | |
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The GARA made the following changes to the terms of the Facility Agreement: |
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• | The initial principal payment date, formerly June 30, 2013, was postponed to December 31, 2014, and the final maturity date was extended from June 30, 2020 to December 31, 2022. | | | | | | | | | | | | | | |
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• | The remaining principal payments, with the final payment due December 31, 2022, were also restructured, resulting in an aggregate postponement of $235.3 million in principal payments through 2019. | | | | | | | | | | | | | | |
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• | The annual interest rate increased by 0.5% to LIBOR plus 2.75% through July 1, 2017, and increases by an additional 0.5% each year thereafter to a maximum rate of LIBOR plus 5.75%. | | | | | | | | | | | | | | |
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• | Mandatory prepayments were expanded in specified circumstances and amounts, including if the Company generates excess cash flow, monetizes its spectrum rights, receives the proceeds of certain asset dispositions or receives more than $145.0 million from the sale of additional debt or equity securities (excluding the Thermo commitments described above and up to $19.5 million under its equity line with Terrapin). | | | | | | | | | | | | | | |
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• | The financial covenants were modified, including changing the amount of permitted capital expenditures, reducing the required minimum liquidity amount from $5.0 million to $4.0 million, restructuring the other existing financial covenants to correspond to the Company's revised business plan reflecting the delays in delivery of its second-generation satellites, and adding a new covenant with respect to its interest coverage ratio (as defined in the Facility Agreement). This new ratio requires that the Company must maintain an adjusted consolidated EBITDA to consolidated interest expense ratio (as defined in the Facility Agreement) of 0.95:1 for the December 31, 2014 measurement period, increasing gradually each semi-annual period until the requirement equals 5.00:1 for the five semi-annual measurement periods leading up to December 31, 2022. | | | | | | | | | | | | | | |
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• | The definition of Change of Control was amended to require a mandatory prepayment of the entire facility if Thermo and certain of its affiliates own less than 51% of the Company's voting common stock. | | | | | | | | | | | | | | |
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• | The required balance of the Debt Service Reserve Account was fixed at the current amount of approximately $37.9 million for the length of the Facility Agreement. | | | | | | | | | | | | | | |
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• | Any new subordinated indebtedness may not mature or pay cash interest prior to the final maturity date of the Facility Agreement. | | | | | | | | | | | | | | |
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• | The Company, while the Facility Agreement is outstanding, is prohibited from paying any cash dividends or repaying any principal or interest with respect to its indebtedness to Thermo under the Thermo Loan Agreement. | | | | | | | | | | | | | | |
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•The Company is prohibited from amending its material agreements without the lenders’ prior consent. |
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• | An event of default was added if any litigation against the Company results in a final judgment that imposes a material liability that was not anticipated by its business plan. | | | | | | | | | | | | | | |
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The Company evaluated the GARA under applicable accounting guidance and determined that the amendment and restatement of its Facility Agreement was a modification of the former indebtedness. |
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The Former Facility Agreement |
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In 2009, the Company entered into a facility agreement with a syndicate of bank lenders, including BNP Paribas, Natixis, Société Générale, Caylon, Crédit Industriel et Commercial as arrangers and BNP Paribas as the security agent and agent for its facility agreement (the "Former Facility Agreement"). The Former Facility Agreement was amended and restated in 2013 (see discussion above). The Former Facility Agreement had a maturity of 84 months after the first principal repayment date, as amended. Semi-annual principal repayments were scheduled to begin on June 30, 2013, as amended. The Former Facility Agreement bore interest at a floating LIBOR rate, plus a margin of 2.25% through December 2017, increasing to 2.40% thereafter. |
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The Former Facility Agreement required the Company to maintain a total of $46.8 million in a debt service reserve account. The use of the funds in this account was restricted to making principal and interest payments under the Former Facility Agreement. The minimum required balance, not to exceed $46.8 million, fluctuated over time based on the timing of principal and interest payment dates. In December 2012, the amount required to be funded into the debt service reserve account was reduced by approximately $8.9 million due to the timing of the first principal repayment date scheduled for June 2013. In January 2013, the agent for the Former Facility Agreement permitted the Company to withdraw from the debt service reserve account $8.9 million that was in excess of the required balance to enable the Company to pay costs relating to the fourth launch of its second-generation satellites. |
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The Former Facility Agreement contained customary events of default and required the Company to satisfy various financial and non-financial covenants. As a result of the Thales arbitration ruling and the subsequent settlement agreements reached with Thales related to the arbitration ruling in 2012, the lenders concluded that events of default had occurred under the Former Facility Agreement. The Company was also in default of certain other financial and non-financial covenants, including, but not limited to, failing to make a payment of principal in June 2013 in accordance with the terms of the Former Facility Agreement, failure to maintain minimum required funding for its debt service account, and failure to achieve in-orbit acceptance of all of its second-generation satellites by April 2013. Prior to the Former Facility Agreement’s amendment and restatement in August 2013, the borrowings were shown as current on the Company's consolidated balance sheet in accordance with applicable accounting rules. The Company also projected that it would not be in compliance with certain future financial and non-financial covenants specified under the Former Facility Agreement. These events of default were waived or cured by the August 2013 amendment and restatement of the Former Facility Agreement. |
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Contingent Equity Agreement |
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In June 2009, the Company entered into a Contingent Equity Agreement with Thermo whereby Thermo agreed to deposit $60.0 million into a contingent equity account to fulfill a condition precedent for borrowing under the Facility Agreement. Under the terms of the Facility Agreement, the Company had the right to make draws from this account if and to the extent it had an actual or projected deficiency in its ability to meet obligations due within a forward-looking 90-day period. |
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The Contingent Equity Agreement provided that the Company would pay Thermo an availability fee of 10% per year for maintaining funds in the contingent equity account. This annual fee was payable solely in warrants to purchase common stock at $0.01 per share with a five-year exercise period from issuance. The number of shares issuable under the warrants was calculated by taking the outstanding funds available in the contingent equity account multiplied by 10% divided by the lower of the Company's common stock price on the issuance date or $1.37, but not to be lower than $0.20. Prior to June 19, 2012, the common stock price was subject to a reset provision on certain valuation dates whereby the warrant price used in the calculation would be the lower of the warrant price on the issuance date or the Company's common stock price on the valuation date. The warrants issued to Thermo are no longer subject to any reset provisions. The Company determined that the warrants issued in conjunction with the availability fee were derivatives and recorded the value of the derivatives as a component of other non-current liabilities, at issuance. The offset was recorded in other assets and was amortized over the one-year availability period. The warrants issued on June 19, 2012 were not subject to a reset provision subsequent to issuance and are therefore not considered a derivative instrument. The offset was recorded in other assets and was amortized over the one-year availability period. On June 19, 2012, the warrants issued on June 19, 2011 were no longer variable, and the related $5.9 million liability was reclassified to equity. |
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When the Company made draws on the contingent equity account, it issued Thermo shares of common stock calculated using a price per share equal to 80% of the average closing price of the common stock for the 15 trading days immediately preceding the draw. The 20% discount on the value of the shares issued to Thermo is treated as a deferred financing cost and is amortized over the remaining term of the Facility Agreement. The Company has drawn the entire $60.0 million from this account as well as interest earned from the funds previously held in this account of approximately $1.1 million. |
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Since the origination of the Contingent Equity Agreement, the Company has issued to Thermo warrants to purchase 41.5 million shares of common stock for the annual availability fee and subsequent resets due to provisions in the Contingent Equity Agreement and 160.9 million shares of common stock resulting from the Company's draws on the contingent equity account pursuant to the terms of the Contingent Equity Agreement. The Company also issued to Thermo 2.1 million shares of common stock resulting from the interest earned from the funds previously held in this account. |
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As of December 31, 2014, Thermo had exercised warrants to purchase approximately 11.3 million of these shares prior to the expiration of the associated warrants. See Note 4: Derivatives and Note 9: Related Party Transactions for additional information related to the warrants exercised in connection with the Contingent Equity Agreement. |
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No voting common stock is issuable if it would cause Thermo and its affiliates to own more than 70% of the Company's outstanding voting stock. The Company may issue nonvoting common stock in lieu of common stock to the extent issuing common stock would cause Thermo and its affiliates to exceed this 70% ownership level. |
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Thermo Loan Agreement |
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The Company has an Amended and Restated Loan Agreement (the “Loan Agreement”) with Thermo whereby Thermo agreed to lend the Company $25.0 million for the purpose of funding the debt service reserve account required under the Facility Agreement. In 2011, this loan was increased to $37.5 million. This loan is subordinated to, and the debt service reserve account is pledged to secure, all of the Company's obligations under the Facility Agreement. Amounts deposited in the debt service reserve account are restricted to payments due under the Facility Agreement, unless otherwise authorized by the lenders. |
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The loan accrues interest at 12% per annum, which is capitalized and added to the outstanding principal in lieu of cash payments. The Company will make payments to Thermo only when permitted under the Facility Agreement. The loan becomes due and payable six months after the obligations under the Facility Agreement have been paid in full, the Company has a change in control or any acceleration of the maturity of the loans under the Facility Agreement occurs. As of December 31, 2014, $30.7 million of interest was outstanding and is included in the principal amount of the Thermo Loan Agreement. The amount by which the if-converted value of the the Thermo Loan Agreement exceeds the principal amount at December 31, 2014, assuming conversion at the closing price of the Company's common stock on that date of $2.75 per share, is approximately $244 million. |
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As additional consideration for the loan, the Company issued Thermo a warrant to purchase 4.2 million shares of common stock at $0.01 per share with a five-year exercise period. No voting common stock is issuable upon such exercise if such issuance would cause Thermo and its affiliates to own more than 70% of the Company's outstanding voting stock. The Company may issue nonvoting common stock in lieu of common stock to the extent issuing common stock would cause Thermo and its affiliates to exceed this 70% ownership level. The Company determined that the warrant was an equity instrument and recorded it as a part of stockholders’ equity with a corresponding debt discount of $5.2 million, which is netted against the principal amount of the loan. The Company accreted this debt discount associated with the warrant using an effective interest method to interest expense over the term of the loan agreement prior to the amendment and restatement as further discussed below. |
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As previously disclosed, in connection with the amendment and restatement of the Facility Agreement, the Company also amended and restated the Loan Agreement in July 2013. The Amended and Restated Loan Agreement made the following changes: |
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• | Provided that the indebtedness would be represented by a promissory note. | | | | | | | | | | | | | | |
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• | Provided that if a Fundamental Change (as defined in the Fourth Supplemental Indenture with respect to the 8.00% Notes issued in 2013) occurs prior to the repayment of the indebtedness, the Company would pay Thermo an amount equal to the Fundamental Make-Whole Amount (as defined in the New Indenture - see 8.00% Convertible Senior Notes Issued in 2013 below). | | | | | | | | | | | | | | |
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• | Provided that the indebtedness is convertible into common stock of the Company on substantially the same terms as the 8.00% Notes Issued in 2013, excluding the conversion features on special conversion dates as provided in the New Indenture. | | | | | | | | | | | | | | |
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The terms of the amendment and restatement were approved by a special committee of the Company's board of directors consisting solely of its unaffiliated directors. The committee was represented by independent legal counsel. |
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Based on the Company's evaluation of the Amended and Restated Loan Agreement, this transaction was determined to be an extinguishment of the debt under the prior Loan Agreement. The Company recorded a loss on the extinguishment of this debt of $66.1 million in its consolidated statement of operations during the third quarter of 2013. This loss represents the difference between the fair value of the Loan Agreement, as amended and restated, and its carrying value just prior to amendment and restatement. See Note 5: Fair Value Measurements for further discussion on the fair value of this instrument. |
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The Company evaluated the various embedded derivatives within the Loan Agreement and determined that the conversion option and the contingent put feature upon a fundamental change required bifurcation from the Loan Agreement. The conversion option and the contingent put feature were not deemed clearly and closely related to the Loan Agreement and were separately accounted for as a standalone derivative. The Company recorded this compound embedded derivative liability as a non-current liability in its consolidated balance sheet with a corresponding debt discount which is netted against the face value of the Loan Agreement. |
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The Company is accreting the debt discount associated with the compound embedded derivative liability to interest expense through the maturity of the Loan Agreement using an effective interest rate method. The fair value of the compound embedded derivative liability will be marked-to-market at the end of each reporting period, with any changes in value reported in the consolidated statements of operations. The Company determined the fair value of the compound embedded derivative using a blend of a Monte Carlo simulation model and market prices. |
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The Company netted the debt discount associated with the compound embedded derivative against the fair value of the Loan Agreement to determine the carrying amount of the Loan Agreement. The accretion of the debt discount will increase the carrying amount of the debt through the maturity of the Loan Agreement. The Company allocated the fair value at issuance as follows (in thousands): |
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Loan Agreement | $ | 18,958 | | | | | | | | | | | | | |
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Compound embedded derivative liability | 101,114 | | | | | | | | | | | | | |
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Fair value of Loan Agreement | $ | 120,072 | | | | | | | | | | | | | |
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5.75% Convertible Senior Unsecured Notes |
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In 2008, the Company issued $150.0 million aggregate principal amount of 5.75% Notes. The 5.75% Notes were senior unsecured debt obligations. The 5.75% Notes were to mature on April 1, 2028 and bore interest at a rate of 5.75% per annum. Interest on the 5.75% Notes was payable semi-annually in arrears on April 1 and October 1 of each year. |
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The 5.75% Notes were subject to repurchase by the Company for cash at the option of the holders in whole or part on April 1, 2013 at a purchase price equal to 100% of the principal amount ($71.8 million aggregate principal was outstanding at April 1, 2013) of the 5.75% Notes, plus accrued and unpaid interest, if any. |
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On March 29, 2013, U.S. Bank National Association, the Trustee under the Indenture and the First Supplemental Indenture governing the 5.75% Notes, each dated as of April 15, 2008, between the Company and the Trustee (collectively, as amended and supplemented or otherwise modified, the "Indenture"), notified the Company in writing that holders of approximately $70.7 million principal amount of 5.75% Notes had exercised their purchase rights pursuant to the Indenture. Under the Indenture, the Company was required to deposit with the Trustee on April 1, 2013, the purchase price of approximately $70.7 million in cash to effect the repurchase of the 5.75% Notes from the exercising holders. The Company did not have sufficient funds to pay the purchase price when due, which constituted an event of default under the Indenture. |
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In addition, the Indenture also required that, on April 1, 2013, the Company pay interest on the 5.75% Notes in the aggregate amount of approximately $2.1 million for the six months ended March 31, 2013. The Company did not make this payment. Under the Indenture, failure to pay this interest by April 30, 2013 also constituted an event of default. |
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As discussed below, these events of default were cured pursuant to the Exchange Agreement transactions consummated on May 20, 2013. |
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Exchange Agreement |
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On May 20, 2013, the Company entered into an Exchange Agreement with the beneficial owners and investment managers for beneficial owners (the “Exchanging Note Holders”) of approximately 91.5% of its outstanding 5.75% Notes and completed the transactions contemplated by the Exchange Agreement. |
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Pursuant to the Exchange Agreement, the Exchanging Note Holders surrendered their 5.75% Notes (the “Exchanged Notes”) to the Company for cancellation in exchange for: |
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• | Approximately $13.5 million in cash, with respect to a portion of the principal amount of the Exchanged Notes, plus approximately $0.5 million in cash, equal to all accrued and unpaid interest on the Exchanged Notes from April 1, 2013 to the closing; | | | | | | | | | | | | | | |
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• | Approximately 30.3 million shares of the Company's voting common stock; and | | | | | | | | | | | | | | |
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• | Approximately $54.6 million principal amount of the Company's new 8.00% Convertible Senior Notes due April 1, 2028 (the “8.00% Notes Issued in 2013”), with an initial conversion price of $0.80 per share, subject to adjustment as described below. | | | | | | | | | | | | | | |
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In the Exchange Agreement, the Company also agreed that, if it granted certain liens to Thermo or its affiliates in connection with future financing transactions, the Exchanging Note Holders may participate in such transactions in an amount up to 50% of the participation of Thermo and its affiliates. |
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Pursuant to the Exchange Agreement, the Company also cured outstanding defaults under the 5.75% Notes by: |
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• | Cancelling the Exchanged Notes as described above; | | | | | | | | | | | | | | |
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• | Depositing with the Trustee approximately $2.1 million, an amount equal to the interest due on all of the 5.75% Notes on April 1, 2013 and accumulated interest thereon, for distribution to the holders of record of the 5.75% Notes as of March 15, 2013; | | | | | | | | | | | | | | |
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• | Depositing with the Trustee approximately $6.3 million, an amount equal to the principal amount of the 5.75% Notes (other than the Exchanged Notes) and interest thereon from April 1, 2013 to June 26, 2013 and directing the Trustee to pay such amounts to the holders of the 5.75% Notes (other than the Exchanged Notes); and | | | | | | | | | | | | | | |
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• | Redeeming the remaining 5.75% Notes. | | | | | | | | | | | | | | |
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On May 20, 2013, the Company called for redemption the remaining 5.75% Notes for cash equal to their principal amount. |
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Based on the Company's evaluation of the exchange transaction, the Exchange Agreement was determined to be an extinguishment of the 5.75% Notes. As a result of this exchange, the Company recorded a loss on the extinguishment of debt of $47.2 million in its consolidated statement of operations during the second quarter of 2013. This loss represented the difference between the carrying value of the 5.75% Notes and the fair value of the consideration given in the exchange (including the new 8.00% Notes Issued in 2013, cash payments to both exchanging and non-exchanging holders, equity issued to the holders and other fees incurred in the exchange). See Note 5: Fair Value Measurements for further discussion of the fair value of this instrument. |
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The Consent Agreement |
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To obtain the lenders’ consent to the transactions contemplated by the Exchange Agreement, pursuant to the Consent Agreement, Thermo agreed that it would make, or arrange for third parties to make, cash contributions to the Company in exchange for equity, subordinated convertible debt or other equity-linked securities as follows: |
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• | At the closing of the exchange transaction and thereafter each week until no later than July 31, 2013, an amount sufficient to enable the Company to maintain a consolidated unrestricted cash balance of at least $4.0 million; | | | | | | | | | | | | | | |
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• | At the closing of the exchange transaction, $25.0 million to satisfy all cash requirements associated with the exchange transaction, including agreed principal and interest payments to the holders of the 5.75% Notes as contemplated by the Exchange Agreement, with any remaining portion being retained by the Company for working capital and general corporate purposes; | | | | | | | | | | | | | | |
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• | Contemporaneously with, and as a condition to the closing of, any restructuring of the Facility Agreement, $20.0 million (less any amount contributed pursuant to the commitment described above with respect to the Company's minimum cash balance); | | | | | | | | | | | | | | |
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• | Subject to the prior closing of the Facility Agreement restructuring, on or prior to December 26, 2013, $20.0 million; and | | | | | | | | | | | | | | |
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• | Subject to the prior closing of the Facility Agreement restructuring, on or prior to December 31, 2014, $20.0 million, less the amount by which the aggregate amount of cash received by the Company under the first, third and fourth commitments described above exceeds $40 million. | | | | | | | | | | | | | | |
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In accordance with the terms of the Common Stock Purchase Agreement and Common Stock Purchase and Option Agreement discussed below, Thermo contributed a total of $65.0 million to the Company in exchange for 171.9 million shares of its nonvoting common stock. |
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The Common Stock Purchase Agreement |
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On May 20, 2013, the Company and Thermo entered into a Common Stock Purchase Agreement pursuant to which Thermo purchased 78.1 million shares of common stock for $25.0 million ($0.32 per share). Thermo also agreed to purchase additional shares of common stock at $0.32 per share as and when required to fulfill its equity commitment described above to maintain the Company's consolidated unrestricted cash balance at not less than $4.0 million until the earlier of July 31, 2013 and the closing of a restructuring of the Facility Agreement. In furtherance thereof, at the closing of the transactions contemplated by the Exchange Agreement, Thermo purchased an additional 15.6 million shares of common stock for an aggregate purchase price of $5.0 million. In June 2013, Thermo purchased an additional 28.1 million shares of common stock for an aggregate purchase price of $9.0 million pursuant to the Common Stock Purchase Agreement. Pursuant to its commitment, Thermo invested a further $6.0 million on July 29, 2013 and $6.5 million on August 19, 2013, on terms later determined by a special committee of the Company's board of directors consisting solely of its unaffiliated directors as described below. |
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During the second quarter of 2013, Thermo purchased in total approximately 121.9 million shares of the Company's common stock pursuant to the Common Stock Purchase Agreement for an aggregate $39.0 million. During the second quarter of 2013, the Company recognized a loss on the sale of these shares of approximately $14.0 million (included in other income/expense on the consolidated statement of operations), representing the difference between the purchase price and the fair value of the Company's common stock (measured as the closing stock price on the date of each sale). Pursuant to the Common Stock Purchase Agreement, the shares of common stock are intended to be shares of nonvoting common stock. |
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The terms of the Common Stock Purchase Agreement were approved by a special committee of the Company's board of directors consisting solely of its unaffiliated directors. The committee, which was represented by independent legal counsel, determined that the terms of the Common Stock Purchase Agreement were fair and in the best interests of the Company and its shareholders. |
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The Common Stock Purchase and Option Agreement |
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On October 14, 2013, the Company and Thermo entered into a Common Stock Purchase and Option Agreement pursuant to which Thermo agreed to purchase 11.5 million shares of the Company's non-voting common stock at a purchase price of $0.52 per share in exchange for the $6.0 million invested in July and an additional $20 million, or 38.5 million shares, of which $6.5 million was invested in August 2013 and the remaining $13.5 million was invested under the First Option, described below, in December 2013. The Common Stock Purchase and Option Agreement also granted the Company a First Option and a Second Option, as defined in the agreement, to sell to Thermo up to $13.5 million and $11.5 million, respectively, of nonvoting common stock, as and when exercised at the direction of the special committee through November 28, 2013 and December 31, 2013, respectively. The First Option to sell up to $13.5 million in shares to Thermo was at a purchase price of $0.52 per share. The Second Option to sell up to $11.5 million in shares to Thermo was at a price equal to 85% of the average closing price of the voting common stock during the ten trading days immediately preceding the date of the special committee’s request. In November 2013, with the approval of the special committee, the Company and Thermo amended the Common Stock Purchase and Option Agreement to defer the expiration date of the Second Option to March 31, 2014. The Second Option under the Common Stock Purchase and Option Agreement was not exercised and therefore has expired. |
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During the third quarter of 2013, Thermo purchased approximately 24.0 million shares of the Company's common stock pursuant to the terms of the Common Stock Purchase and Option Agreement for an aggregate purchase price of $12.5 million. During the third quarter of 2013, the Company recognized a loss on the sale of these shares of approximately $2.4 million (included in other income/expense in the consolidated statement of operations), representing the difference between the purchase price and the fair value of the common stock (measured as the closing stock price on the date of each sale). |
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In November 2013, the Company exercised the First Option, and on December 27, 2013 Thermo purchased 26.0 million shares of common stock at a purchase price of $0.52 per share for a total additional investment of $13.5 million. |
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The terms of the Common Stock Purchase and Option Agreement were approved by a special committee of the board of directors consisting solely of the unaffiliated directors. The committee, which was represented by independent legal counsel, determined that the terms of the Common Stock Purchase and Option Agreement were fair and in the best interests of the Company and its shareholders. |
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Share Lending Agreement |
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Concurrently with the 2008 offering of the 5.75% Notes, the Company entered into a share lending agreement (the “Share Lending Agreement”) with Merrill Lynch International (the “Borrower”), pursuant to which the Company agreed to lend up to 36.1 million shares of common stock (the “Borrowed Shares”) to the Borrower, subject to certain adjustments, for a period ending on the earliest of (i) at the Company's option, at any time after the entire principal amount of the 5.75% Notes ceases to be outstanding, (ii) the written agreement of the Company and the Borrower to terminate, (iii) the occurrence of a Borrower default, at the option of Lender, and (iv) the occurrence of a Lender default, at the option of the Borrower. Pursuant to the Share Lending Agreement, upon the termination of the share loan, the Borrower was required to return the Borrowed Shares to the Company. Upon the conversion of 5.75% Notes (in whole or in part), a number of Borrowed Shares proportional to the conversion rate for such notes was required to be returned to the Company. At the Company's election, the Borrower was permitted to deliver cash equal to the market value of the corresponding Borrowed Shares instead of returning to the Company the Borrowed Shares otherwise required by conversions of 5.75% Notes. |
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Pursuant to and upon the terms of the Share Lending Agreement, the Company issued and loaned the Borrowed Shares to the Borrower as a share loan. The Borrowing Agent also acted as an underwriter with respect to the Borrowed Shares, which were offered to the public. The Borrowed Shares included approximately 32.0 million shares of common stock initially loaned by the Company to the Borrower on separate occasions, delivered pursuant to the Share Lending Agreement and the Underwriting Agreement, and an additional 4.1 million shares of common stock that, from time to time, could be borrowed from the Company by the Borrower pursuant to the Share Lending Agreement and the Underwriting Agreement and subsequently offered and sold at prevailing market prices at the time of sale or negotiated prices. The Borrowed Shares are free trading shares. |
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During July 2013, in connection with the exchange or redemption of all of the 5.75% Notes, the Company and the Borrower terminated the Share Lending Agreement. In connection with this termination, the Borrower returned 10.2 million Borrowed Shares to the Company and paid approximately $4.4 million in cash for the remaining 7.1 million Borrowed Shares. As of December 31, 2012, approximately 17.3 million Borrowed Shares were outstanding. During 2013, the Share Lending Arrangement was terminated and all Borrowed Shares had been either returned to the Company or purchased by the Borrower. |
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8.00% Convertible Senior Notes Issued in 2013 |
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On May 20, 2013, pursuant to the Exchange Agreement, the Company issued $54.6 million aggregate principal amount of 8.00% Convertible Senior Notes (the “8.00% Notes Issued in 2013”) to the Exchanging Note Holders. The 8.00% Notes Issued in 2013 are convertible into shares of common stock at an initial conversion price of $0.80 per share of common stock, or 1,250 shares of common stock per $1,000 principal amount of the 8.00% Notes Issued in 2013, subject to adjustment as provided in the Fourth Supplemental Indenture between the Company and U.S. Bank National Association, as Trustee (the “New Indenture”). The conversion price of the 8.00% Notes Issued in 2013 will be adjusted in the event of certain stock splits or extraordinary share distributions, or as a reset of the base conversion and exercise price as described below. |
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The 8.00% Notes Issued in 2013 are senior unsecured debt obligations. There is no sinking fund for the 8.00% Notes Issued in 2013. The 8.00% Notes Issued in 2013 will mature on April 1, 2028, subject to various call and put features as described below, and bear interest at a rate of 8.00% per annum. Interest on the 8.00% Notes Issued in 2013 is payable semi-annually in arrears on April 1 and October 1 of each year. Interest is paid in cash at a rate of 5.75% per annum and additional 8.00% Notes Issued in 2013 at a rate of 2.25% per annum. |
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Subject to certain conditions set forth in the New Indenture, including prior approval of the Majority Lenders (as defined in the Facility Agreement), the Company may redeem the 8.00% Notes Issued in 2013, in whole or in part, at any time on or after April 1, 2018, at a price equal to the principal amount of the 8.00% Notes Issued in 2013 to be redeemed plus all accrued and unpaid interest thereon. |
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A holder of 8.00% Notes Issued in 2013 has the right, at the Holder’s option, to require the Company to purchase some or all of the 8.00% Notes Issued in 2013 held by it on each of April 1, 2018 and April 1, 2023 at a price equal to the principal amount of the 8.00% Notes Issued in 2013 to be purchased plus accrued and unpaid interest. |
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A holder of the 8.00% Notes Issued in 2013 has the right, at the holder’s option, to require the Company to purchase some or all of the 8.00% Notes Issued in 2013 held by it at any time if there is a Fundamental Change. A Fundamental Change occurs if the Company's common stock ceases to be traded on a stock exchange or an established over-the-counter market or if there is a change of control. If there is a Fundamental Change, the purchase price of any 8.00% Notes Issued in 2013 purchased by the Company will be equal to its principal amount plus accrued and unpaid interest and a Fundamental Change Make-Whole Amount calculated as provided in the New Indenture. |
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Subject to the procedures for conversion and other terms and conditions of the New Indenture, a holder may convert its 8.00% Notes Issued in 2013 at its option at any time prior to the close of business on the business day immediately preceding April 1, 2028, into shares of common stock (or, at the Company's option, cash in lieu of all or a portion thereof, provided that, under the Facility Agreement, the Company may pay cash only with the consent of the Majority Lenders). Upon conversion, the holder will be entitled to receive shares of common stock, cash or a combination thereof (provided that, under the Facility Agreement, the Company may pay cash only with the consent of the Majority Lenders), in such amounts and subject to terms and conditions set forth in the New Indenture. The Company will pay cash in lieu of fractional shares otherwise issuable upon conversion of the 8.00% Notes Issued in 2013 as specified in the Indenture. |
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A holder was also entitled to elect to convert up to 15% of its 8.00% Notes Issued in 2013 on each of July 19, 2013 and March 20, 2014. If a holder elected to convert on either of those dates, it would receive, at the Company's option, either cash equal to the par value of the 8.00% Notes Issued in 2013 plus accrued interest (provided that, under the Facility Agreement, the Company may pay cash only with the consent of the Majority Lenders) or shares of common stock equal to the principal amount of the 8.00% Notes Issued in 2013 to be converted plus accrued interest divided by the lower of the average price of the common stock in a specified period and $0.50. On July 19, 2013, $7.0 million principal amount (approximately 12.9% of the outstanding principal amount) of 8.00% Notes Issued in 2013 were converted, resulting in the issuance of 14.3 million shares. On March 20, 2014, $7.0 million principal amount (approximately 15.0% of the outstanding principal amount) of 8.00% Notes Issued in 2013 were converted, resulting in the issuance of an additional 14.6 million shares. |
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Through December 31, 2014, a total of $32.9 million principal amount of 8.00% Notes Issued in 2013 had been converted, resulting in the issuance of approximately 60.3 million shares of voting common stock relating to the special conversions discussed above as well as normal conversions pursuant to the terms of the New Indenture. The Company recorded a gain on extinguishment of debt related to these conversions of approximately $4.2 million as of December 31, 2013 and a loss on extinguishment of debt of $44.1 million as of December 31, 2014. Pursuant to the terms in the New Indenture for the 8.00% Notes Issued in 2013 for normal conversions, holders receive conversion shares over a 40-consecutive trading day settlement period. As a result of this feature, the portion of converted debt is extinguished on an incremental basis over the 40-day settlement period, reducing the Company's debt balance outstanding. During November 2014, the Company received notice of conversion of approximately $0.7 million principal amount of 8.00% Notes Issued in 2013. As of December 31, 2014, $0.2 million of this conversion had not been settled. |
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The base conversion rate may be adjusted on each of April 1, 2014 and April 1, 2015 based on the average price of the Company's common stock in the 30-day period ending on that date. If the base conversion rate is adjusted on April 1, 2014 or April 1, 2015, the Company also will provide additional consideration to the holders of the 8.00% Notes Issued in 2013 in an amount equal to 25% of the principal amount of the outstanding 8.00% Notes Issued in 2013, payable in equity or cash at the Company's election (provided, under the Facility Agreement, that the Company may pay cash only with the consent of the Majority Lenders). That consideration will not reduce the principal amount of the 8.00% Notes Issued in 2013 or any interest otherwise payable on the 8.00% Notes Issued in 2013. The base conversion rate was not adjusted on April 1, 2014. |
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The New Indenture also provides for other customary adjustments of the base conversion rate, including upon the Company's sale of additional equity securities at a price below the then applicable conversion price. Due to common stock issuances since May 20, 2013, the base conversion rate was reduced to $0.73 per share of common stock as of December 31, 2014. The amount by which the if-converted value of the 8.00% Notes Issued in 2013 exceeds the principal amount at December 31, 2014, assuming conversion at the closing price of the Company's common stock on that date of $2.75 per share, is approximately $84 million. |
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The New Indenture provides that the Company and its subsidiaries may not, with specified exceptions, including the liens securing the Facility and liens approved in writing by the Agent, create, incur, assume or suffer to exist any lien on any of its assets, provided that if the Company or any of its subsidiaries creates, incurs or assumes any lien which is junior to the most senior lien securing the Facility Agreement (other than a lien pursuant to a restructuring of the Facility Agreement in which and its affiliates do not participate as a secured lender), the Company must promptly issue to the holders of the 8.00% Notes Issued in 2013 $3.6 million (representing 5.0% of the principal amount of the 5.75% Notes outstanding on the date of the Exchange Agreement, which was $71.8 million) of shares of the Company's common stock. At December 31, 2014, the Company did not expect that a lien will be created that does not meet at least one of the specified exceptions in the New Indenture, and therefore accrued no amount for this feature at December 31, 2014. |
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The New Indenture provides for customary events of default, including without limitation, failure to pay principal or premium on the 8.00% Notes Issued in 2013 when due or to distribute cash or shares of common stock when due as described above; failure by the Company to comply with its obligations and covenants in the New Indenture; default by the Company in the payment of principal or interest on any other indebtedness for borrowed money with a principal amount in excess of $10.0 million, if such indebtedness is accelerated and not rescinded with 30 days; rendering of certain final judgments; failure by Thermo to fulfill the contribution obligations described above; and certain events of insolvency or bankruptcy. If there is an event of default, the Trustee may, at the direction of the holders of 25% or more in aggregate principal amount of the 8.00% Notes Issued in 2013, accelerate the maturity of the 8.00% Notes Issued in 2013. The Company was not in default under the 8.00% Notes Issued in 2013 as of December 31, 2014. |
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The Company evaluated the various embedded derivatives within the New Indenture and determined that the conversion option and the contingent put feature within the New Indenture required bifurcation from the 8.00% Notes Issued in 2013. The conversion option and the contingent put feature were not deemed clearly and closely related to the 8.00% Notes Issued in 2013 and were separately accounted for as a standalone derivative. The Company recorded this compound embedded derivative liability as a non-current liability in the consolidated balance sheet with a corresponding debt discount which is netted against the face value of the 8.00% Notes Issued in 2013. |
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The Company is accreting the debt discount associated with the compound embedded derivative liability to interest expense through the first put date of the 8.00% Notes Issued in 2013 (April 1, 2018) using an effective interest rate method. The fair value of the compound embedded derivative liability is being marked-to-market at the end of each reporting period, with any changes in value reported in the consolidated statements of operations. The Company determined the fair value of the compound embedded derivative using a blend of a Monte Carlo simulation model and market prices. |
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The Company netted the debt discount associated with compound embedded derivative against the fair value of the 8.00% Notes Issued in 2013 to determine the carrying amount of the 8.00% Notes Issued in 2013. The accretion of the debt discount will increase the carrying amount of the debt through April 1, 2018 (the first put date of the 8.00% Notes Issued in 2013). The Company allocated the fair value at issuance as follows (in thousands): |
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Senior notes | $ | 27,890 | | | | | | | | | | | | | |
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Compound embedded derivative liability | 56,752 | | | | | | | | | | | | | |
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Fair value of 8.00% Notes Issued in 2013 | $ | 84,642 | | | | | | | | | | | | | |
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5.0% Convertible Senior Notes |
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In June 2011, the Company issued $38.0 million in aggregate principal amount of the 5.0% Convertible Senior Unsecured Notes (the “5.0% Notes”) and warrants (the “5.0% Warrants”) to purchase 15.2 million shares of voting common stock. The 5.0% Notes were convertible into shares of common stock at an initial conversion price of $1.25 per share of common stock, or 800 shares of common stock per $1,000 principal amount of the 5.0% Notes, subject to adjustment in the manner set forth in the Indenture. The 5.0% Notes were guaranteed on a subordinated basis by substantially all of the Company's domestic subsidiaries, on an unconditional joint and several basis, pursuant to a Guaranty Agreement. The 5.0% Warrants are exercisable until five years after their issuance. The 5.0% Notes and 5.0% Warrants have anti-dilution protection in the event of certain stock splits or extraordinary share distributions, and a reset of the conversion and exercise price on April 15, 2013 if the common stock were below the initial conversion and exercise price at that time. On April 15, 2013, the base conversion rate for the 5.0% Notes and the exercise price of the 5.0% Warrants were reset to $0.50 and $0.32, respectively. |
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The 5.0% Notes were senior unsecured debt obligations and ranked pari passu with the Company's 8.00% Notes Issued in 2009 and existing 8.00% Notes Issued in 2013 and were subordinated to the Company's obligations pursuant to its Facility Agreement. There was no sinking fund for the 5.0% Notes. The 5.0% Notes were scheduled to mature at the earlier to occur of December 14, 2021, or six months following the maturity date of the Facility Agreement and bore interest at a rate of 5.0% per annum. Interest on the notes was payable in-kind semi-annually in arrears on June 15 and December 15 of each year. Under certain circumstances, interest on the 5.0% Notes may have been payable in cash at the election of the holder if such payments are permitted under the Facility Agreement. |
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Subject to certain exceptions set forth in the Indenture, the 5.0% Notes were subject to repurchase for cash at the option of the holders of all or any portion of the 5.0% Notes upon a fundamental change at a purchase price equal to 100% of the principal amount of the 5.0% Notes, plus a make-whole payment and accrued and unpaid interest, if any. A fundamental change would have occurred upon certain changes in the ownership of the Company or certain events relating to the trading of the common stock. |
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Holders could convert their 5.0% Notes into voting common stock at their option at any time. Upon conversion of the 5.0% Notes, the Company paid the holders of the 5.0% Notes a make-whole premium by increasing the number of shares of common stock delivered upon such conversion. The number of additional shares constituting the make-whole premium per $1,000 principal amount of 5.0% Notes was equal to the quotient of (i) the aggregate principal amount of the 5.0% Notes so converted multiplied by 25.00%, less the aggregate interest paid on such Securities prior to the applicable Conversion Date divided by (ii) 95% of the volume-weighted average Closing Price of the Common Stock for the 10 trading days immediately preceding the conversion date. |
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Pursuant to the terms of the 5.0% Notes Indenture, if, at any time on or after June 14, 2013 and on or prior to Stated Maturity, the closing price of the common stock exceeded 200% of the conversion price then in effect for at least 30 consecutive trading days, then, at the Company's option, all Securities then outstanding were to convert automatically into shares of common stock. The conditions for the automatic conversion were met, and the Company elected to convert all outstanding 5.0% Notes into shares of common stock on November 7, 2013. |
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Prior to November 7, 2013, approximately $17.5 million principal amount of 5.0% Notes had been converted resulting in the issuance of 41.1 million shares of the Company's common stock and 5.0% Warrants had been exercised to purchase 7.2 million shares of common stock, which resulted in the Company issuing 6.7 million shares of common stock and receiving $2.0 million. On November 7, 2013, approximately $24.2 million, representing the remaining principal amount of 5.0% Notes plus paid in kind interest added to the principal amount of the 5.0% Notes, of 5.0% Notes were converted, resulting in the issuance of 51.9 million shares of the Company's common stock. 5.0% Warrants to purchase eight million shares of common stock were outstanding as of December 31, 2014. |
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Subject to certain exceptions set forth in the supplemental indenture, if certain changes of control or events relating to the listing of the common stock occur (a “fundamental change”), the 5.0% Notes were subject to repurchase for cash at the option of the holders of all or any portion of the 8.00% Notes Issued in 2009 at a purchase price equal to 100% of the principal amount of the 8.00% Notes Issued in 2009, plus a make-whole payment and accrued and unpaid interest, if any. Holders that require the Company to repurchase 8.00% Notes Issued in 2009 upon a fundamental change may elect to receive shares of common stock in lieu of cash. Such holders would receive a number of shares equal to (i) the number of shares they would have been entitled to receive upon conversion of the 8.00% Notes Issued in 2009, plus (ii) a make-whole premium of 12% or 15%, depending on the date of the fundamental change and the amount of the consideration, if any, received by the Company's stockholders in connection with the fundamental change. |
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The Company evaluated the various embedded derivatives resulting from the conversion rights and features within the Indenture for bifurcation from the 5.0% Notes. Due to the provisions and reset features in the 5.0% Warrants, the Company recorded the 5.0% Warrants as equity with a corresponding debt discount which is netted against the face value of the 5.0% Notes. The Company accreted the debt discount associated with the 5.0% Warrants to interest expense over the term of the 5.0% Warrants using the effective interest rate method. The Company determined the relative fair value of the 5.0% Warrants using a blend of a Monte Carlo simulation model and market prices based upon a risk-neutral stock price model. |
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The Company evaluated the embedded derivative resulting from the contingent put feature within the Indenture for bifurcation from the 5.0% Notes. The contingent put feature was not deemed clearly and closely related to the 5.0% Notes and had to be bifurcated as a standalone derivative. The Company recorded this embedded derivative liability as a non-current liability in its consolidated balance sheet with a corresponding debt discount which was netted against the principal amount of the 5.0% Notes. |
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The Company evaluated the conversion option within the convertible notes to determine whether the conversion price was beneficial to the note holders. The Company recorded a beneficial conversion feature (“BCF”) related to the issuance of the 5.0% Notes. The BCF for the 5.0% Notes was recognized and measured by allocating a portion of the proceeds to beneficial conversion feature, based on relative fair value, and as a reduction to the carrying amount of the convertible instrument equal to the intrinsic value of the conversion feature. The Company accreted the discount recorded in connection with the BCF valuation as interest expense over the term of the 5.0% Notes, using the effective interest rate method. |
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As the remaining amount of 5.0% Notes converted prior to full accretion of the discounts created by the BCF, the Company recorded approximately $12.9 million of the unamortized discount for the BCF and other separable instruments to interest expense during the fourth quarter of 2013. The Company also recorded approximately $0.8 million to derivative gain for the derivative embedded in the 5.0% Notes that is no long outstanding as a result of this conversion. |
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The Company netted the debt discount associated with the 5.0% Warrants, the beneficial conversion feature, and the contingent put feature against the face value of the 5.0% Notes to determine the carrying amount of the 5.0% Notes. The accretion of debt discount will increase the carrying amount of the debt over the term of the 5.0% Notes. The Company allocated the proceeds at issuance as follows (in thousands): |
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Debt | $ | 11,316 | | | | | | | | | | | | | |
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Fair value of 5.0% Warrants | 8,081 | | | | | | | | | | | | | |
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Beneficial Conversion Feature | 17,100 | | | | | | | | | | | | | |
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Contingent Put Feature | 1,503 | | | | | | | | | | | | | |
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Face Value of 5.0% Notes | $ | 38,000 | | | | | | | | | | | | | |
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8.00% Convertible Senior Unsecured Notes Issued in 2009 |
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Pursuant to the terms of the indenture governing the 8.00% Notes Issued in 2009, if at any time the closing price of the common stock exceeds 200% of the conversion price of the 8.00% Notes Issued in 2009 then in effect for 30 consecutive trading days, all of the outstanding 8.00% Notes Issued in 2009 would have been automatically converted into common stock. The condition for the automatic conversion was met on April 15, 2014, and all outstanding 8.00% Notes Issued in 2009 (approximately $37.8 million principal amount at that time) converted on that date into approximately 34.5 million shares of voting common stock. Prior to expiration of the 8.00% Warrants and the automatic conversion of the 8.00% Notes Issued in 2009, the exercise price of the 8.00% Warrants was $0.32 and the base conversion price of the 8.00% Notes Issued in 2009 was $1.14. |
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In June 2009, the Company sold $55.0 million in aggregate principal amount of 8.00% Convertible Senior Unsecured Notes (the “8.00% Notes Issued in 2009”) and Warrants (the “8.00% Warrants”) to purchase 15.3 million shares of common stock. The 8.00% Notes Issued in 2009 were subordinated to all of the Company's obligations under the Facility Agreement. The 8.00% Notes Issued in 2009 were senior unsecured debt obligations and, except as described in the preceding sentence, ranked pari passu with the Company's existing unsecured, unsubordinated obligations, including the 8.00% Notes Issued in 2013. The 8.00% Notes Issued in 2009 were to mature at the later of the tenth anniversary of closing (June 19, 2019) or six months following the maturity date of the Facility Agreement and bore interest at a rate of 8.00% per annum. Interest on the 8.00% Notes Issued in 2009 was payable in the form of additional 8.00% Notes Issued in 2009 or, subject to certain restrictions, in common stock at the option of the holder. Interest was payable semi-annually in arrears on June 15 and December 15 of each year. |
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The 8.00% Warrants had full ratchet anti-dilution protection and the exercise price of the Warrants was subject to adjustment under certain other circumstances. In the event of certain transactions that involve a change of control, the holders of the 8.00% Warrants have the right to make the Company purchase the warrants for cash, subject to certain conditions. The exercise period for the 8.00% Warrants began on December 19, 2009 and ended on June 19, 2014. As a result of the expiration of this period on June 19, 2014, all outstanding 8.00% Warrants were exercised during the second quarter of 2014, resulting in the issuance of 38.2 million shares of the Company's common stock. Holders of the 8.00% Warrants had the right to exercise on either a cash or cashless basis. The Company received approximately $7.5 million in cash as a result of these exercises. |
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Subject to certain exceptions set forth in the supplemental indenture, if certain changes of control or events relating to the listing of the common stock occur (a “fundamental change”), the 8.00% Notes Issued in 2009 were subject to repurchase for cash at the option of the holders of all or any portion of the 8.00% Notes Issued in 2009 at a purchase price equal to 100% of the principal amount of the 8.00% Notes Issued in 2009, plus a make-whole payment and accrued and unpaid interest, if any. Holders that require the Company to repurchase 8.00% Notes Issued in 2009 upon a fundamental change could elect to receive shares of common stock in lieu of cash. Such holders would have received a number of shares equal to the number of shares they would have been entitled to receive upon conversion of the 8.00% Notes Issued in 2009, plus a make-whole premium of 12% or 15%, depending on the date of the fundamental change and the amount of the consideration, if any, received by the Company's stockholders in connection with the fundamental change. |
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The Company recorded the conversion rights and features and the contingent put feature embedded within the 8.00% Notes Issued in 2009 as a compound embedded derivative liability on the consolidated balance sheets with a corresponding debt discount, which is netted against the principal amount of the 8.00% Notes Issued in 2009. Due to the cash settlement provisions and reset features in the 8.00% Warrants issued with the 8.00% Notes Issued in 2009, the Company recorded the 8.00% Warrants as an embedded derivative liability in the consolidated balance sheets with a corresponding debt discount, which is netted against the principal amount of the 8.00% Notes Issued in 2009. |
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Prior to the automatic conversion of these notes, the Company was accreting the debt discount associated with the compound embedded derivative liability to interest expense over the term of the 8.00% Notes Issued in 2009 using an effective interest rate method. The fair value of the compound embedded derivative liability was being marked-to-market at the end of each reporting period, with any changes in value reported in the consolidated statements of operations. The Company determined the fair value of the compound embedded derivative using a blend of a Monte Carlo simulation model and market prices. Upon the automatic conversion of the 8.00% Notes Issued in 2009, the remaining debt discount and derivative liability were written off through extinguishment gain (loss). The Company recorded a gain on extinguishment of debt of approximately $4.3 million related to these conversions. |
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Due to the cash settlement provisions and reset features in the 8.00% Warrants, the Company initially recorded the 8.00% Warrants as a component of other non-current liabilities on the consolidated balance sheet with a corresponding debt discount which is netted with the face value of the 8.00% Notes Issued in 2009. Prior to exercise, the Company was accreting the debt discount associated with the 8.00% Warrants liability to interest expense over the term of the 8.00% Notes Issued in 2009 using an effective interest rate method. The fair value of the 8.00% Warrants liability was marked-to-market at the end of each reporting period, with any changes in value reported in the consolidated statements of operations. The Company determined the fair value of the 8.00% Warrants derivative using a blend of a Monte Carlo simulation model and market prices. As the exercise period for the 8.00% Warrants expired in June 2014, the Company had classified this derivative liability as current in the consolidated balance sheet at December 31, 2013. |
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The Company allocated the proceeds received from the 8.00% Notes Issued in 2009 among the compound embedded derivative liability, the detachable 8.00% Warrants and the remainder to the underlying debt. The Company netted the debt discount associated with the compound embedded derivative and 8.00% Warrants against the face value of the 8.00% Notes Issued in 2009 to determine the carrying amount of the 8.00% Notes Issued in 2009. The accretion of debt discount will increase the carrying amount of the debt over the term of the 8.00% Notes Issued in 2009. The Company allocated the proceeds at issuance as follows (in thousands): |
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Fair value of compound embedded derivative | $ | 23,542 | | | | | | | | | | | | | |
| | | | | | | | | | | |
Fair value of Warrants | 12,791 | | | | | | | | | | | | | |
| | | | | | | | | | | |
Debt | 18,667 | | | | | | | | | | | | | |
| | | | | | | | | | | |
Face Value of 8.00% Notes Issued in 2009 | $ | 55,000 | | | | | | | | | | | | | |
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Warrants Outstanding |
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As a result of the borrowings described above there were warrants outstanding to purchase shares of common stock as shown in the table below: |
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| Outstanding Warrants | | Strike Price | | |
| December 31, | | December 31, | | |
| 2014 | | 2013 | | 2014 | | 2013 | | |
Contingent Equity Agreement (1) | 30,191,866 | | | 41,467,980 | | | $ | 0.01 | | | $ | 0.01 | | | |
| |
Thermo Loan Agreement (2) | — | | | 4,205,608 | | | — | | | 0.01 | | | |
| |
5.0% Notes (3) | 8,000,000 | | | 8,000,000 | | | 0.32 | | | 0.32 | | | |
| |
8.00% Notes Issued in 2009 (4) | — | | | 39,842,813 | | | — | | | 0.32 | | | |
| |
| 38,191,866 | | | 93,516,401 | | | | | | | | | |
| |
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| | | | | | | | | | | | | | | |
-1 | Warrants issued in connection with the Contingent Equity Agreement have a five-year exercise period from issuance. These warrants were originally issued between June 2009 and June 2012 and the exercise periods related to the remaining unexercised warrants will expire from June 2015 to June 2017. | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | |
-2 | The exercise period of the warrants issued in connection with the Thermo Loan Agreement was five years from issuance, which ended June 2014. | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | |
-3 | On April 15, 2013, the exercise price of the 5.0% Warrants was reset to $0.32 due to the reset provision in the indenture. The 5.0% Warrants are exercisable until five years after their issuance, which is June 2016. | | | | | | | | | | | | | | |
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-4 | According to the terms of the indenture, additional 8.00% Warrants would have been issued to holders if shares of common stock were issued below the then current warrant strike price. The exercise period for the 8.00% Warrants began on December 19, 2009 and ended on June 14, 2014. | | | | | | | | | | | | | | |
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Debt maturities |
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Annual debt maturities for each of the five years following December 31, 2014 and thereafter are as follows (in thousands): |
| | | | | | | | | | | | |
| | | | | | | | | | | | | | | |
2015 | $ | 6,450 | | | | | | | | | | | | | |
| | | | | | | | | | | |
2016 | 32,835 | | | | | | | | | | | | | |
| | | | | | | | | | | |
2017 | 75,755 | | | | | | | | | | | | | |
| | | | | | | | | | | |
2018 | 100,665 | | | | | | | | | | | | | |
| | | | | | | | | | | |
2019 | 94,870 | | | | | | | | | | | | | |
| | | | | | | | | | | |
Thereafter | 362,674 | | | | | | | | | | | | | |
| | | | | | | | | | | |
Total | $ | 673,249 | | | | | | | | | | | | | |
| | | | | | | | | | | |
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Amounts in the above table are calculated based on amounts outstanding at December 31, 2014, and therefore exclude paid-in-kind interest payments that will be made in future periods. |
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The 8.00% Notes Issued in 2013 are subject to repurchase by the Company at the option of the holders on April 1, 2018. As such, the amounts are included in the 2018 maturities in the table above. |
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Terrapin Opportunity, L.P. Common Stock Purchase Agreement |
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On December 28, 2012, the Company entered into a Common Stock Purchase Agreement with Terrapin pursuant to which the Company may, subject to certain conditions, require Terrapin to purchase up to $30.0 million of shares of voting common stock over the 24-month term following the effectiveness of a resale registration statement, which became effective on August 2, 2013. This type of arrangement is sometimes referred to as a committed equity line financing facility. From time to time over the 24-month term, and in the Company's sole discretion, it may present Terrapin with up to 36 draw down notices requiring Terrapin to purchase a specified dollar amount of shares of voting common stock, based on the price per share per day over 10 consecutive trading days (a "Draw Down Period"). The per share purchase price for these shares equals the daily volume weighted average price of common stock on each date during the Draw Down Period on which shares are purchased, less a discount ranging from 3.5% to 8% based on a minimum price that the Company solely specifies. In addition, in the Company's sole discretion, but subject to certain limitations, it may require Terrapin to purchase a percentage of the daily trading volume of the Company's common stock for each trading day during the Draw Down Period. The Company has agreed not to sell to Terrapin a number of shares of voting common stock which, when aggregated with all other shares of voting common stock then beneficially owned by Terrapin and its affiliates, would result in the beneficial ownership by Terrapin or any of its affiliates of more than 9.9% of the then issued and outstanding shares of voting common stock. |
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When the Company makes a draw under the Terrapin equity line agreement, it will issue Terrapin shares of common stock calculated using a price per share as specified in the agreement. As of December 31, 2014, Terrapin had purchased a total of 6.1 million shares of voting common stock at a purchase price of $6.0 million pursuant to the terms of the agreement. In February 2015, the Company drew $10.0 million under the agreement with Terrapin, which amount was an Equity Cure Contribution under the terms of the Facility Agreement, and issued 4.5 million shares of voting common stock to Terrapin at an average price of $2.22 per share. As a result, the Company was in compliance with its financial and non-financial covenants as of December 31, 2014. The Company anticipates that it will make additional draws under the Terrapin Agreement during 2015 to achieve compliance with its financial covenants under the Facility Agreement. |