REDEEMABLE SERIES A PREFERRED STOCK | REDEEMABLE SERIES A PREFERRED STOCK 2018 Securities Purchase Agreement On July 19, 2018, the Company closed a Securities Purchase Agreement (the “2018 SPA”) with several accredited investors (the “Purchasers”) for a private placement (the “Initial Private Placement”) of (i) 140,000 shares of Series A Preferred Stock, (ii) approximately 2.9 million shares of Common Stock, and (iii) convertible secured promissory notes (the “Convertible Notes”), with no principal amount outstanding at issuance that solely collateralize amounts, if any, that may become payable by the Company pursuant to certain redemption provisions of the Series A Preferred Stock. Pursuant to the 2018 SPA, the Purchasers acquired an aggregate of 140,000 shares of Series A Preferred Stock, 2.9 million shares of Common Stock, and Convertible Notes with no principal amount outstanding as of the issuance date, for an aggregate purchase price equal to $133.0 million in cash (after taking into account a discount of $7.0 million, but before the incremental and direct transaction costs associated with the Private Placement of $4.6 million). The allocation of the net proceeds as of the closing date, along with changes in the net carrying value of the Series A Preferred Stock through June 30, 2021, are set forth below (dollars in thousands): Series A Preferred Stock Common Convertible Shares Amount Stock Notes Total Fair value on July 19, 2018: Series A Preferred Stock 140,000 $ 126,763 (1) $ — $ — $ 126,763 Common Stock — — 20,131 (2) — 20,131 Convertible Notes — — — — — Total 140,000 $ 126,763 $ 20,131 $ — $ 146,894 Relative fair value allocation on July 19, 2018 Aggregate cash proceeds on July 19, 2018 140,000 $ 114,773 (3) $ 18,227 (3) $ — $ 133,000 Incremental and direct costs — (3,994) (4) (634) (4) — (4,628) Net carrying value on July 19, 2018 140,000 $ 110,779 $ 17,593 $ — $ 128,372 _________________ (1) The liquidation preference for each share of Series A Preferred Stock on the closing date for the Initial Private Placement was $1,000 per share for an aggregate liquidation preference of $140.0 million. The estimated fair value of the Series A Preferred Stock was approximately $126.8 million on July 19, 2018, which is the basis for allocation of the net proceeds. Please refer to Note 11 for further discussion of the valuation methodology employed. (2) The fair value of the issuance of approximately 2.9 million shares of Common Stock was based on the last closing price of $6.95 per share on the date prior to closing the transaction. (3) The aggregate cash proceeds of $133.0 million on July 19, 2018 were allocated pro rata based on the fair value of all consideration issued. (4) Incremental and direct costs of the Initial Private Placement were allocated pro rata based on the fair value of all consideration issued. Such costs include financial advisory and professional fees of $2.7 million that were incurred by the Company, and due diligence and professional fees incurred by the investors of $1.9 million. At the closing, the Company used the $133.0 million of proceeds from the Initial Private Placement plus cash and cash equivalents of $2.7 million to (i) repay all outstanding indebtedness and various operating and financing fees and expenses under its former credit facility in the aggregate amount of $132.8 million, (ii) pay incremental and direct transaction costs of $2.7 million, and (iii) pay a professional services retainer of $0.2 million. In connection with the completion of the Initial Private Placement, the Company, among other customary closing actions, (i) filed a Certificate of Designations with the State of Delaware setting forth the rights, preferences, privileges, qualifications, restrictions and limitations on the Series A Preferred Stock (the “CoD”), (ii) entered into a Registration Rights Agreement with the Purchasers setting forth certain registration rights of capital stock held by the Purchasers (the “Registration Rights Agreement”), (iii) delivered a Convertible Note to each Purchaser, and (iv) entered into a Security Agreement (the “Security Agreement”) in respect of the Company’s assets collateralizing the amounts that may become payable pursuant to the Convertible Notes if certain redemption provisions of the Series A Preferred Stock are triggered in the future. March 2019 Securities Purchase Agreement On March 7, 2019, the Company entered into a securities purchase agreement (the “March 2019 SPA”) with an accredited investor for a private placement (the “March 2019 Private Placement”) of (i) 6,500 shares of Series A Preferred Stock, (ii) 134,483 shares of Common Stock, and (iii) a Convertible Note with no principal balance outstanding. The shares of Series A Preferred Stock were authorized pursuant to the CoD and are subject to the provisions set forth in an amended Security Agreement, a Convertible Note and a registration rights agreement that is substantially similar in all material respects to the Registration Rights Agreement entered into in connection with the 2018 SPA discussed above. The accredited investor in the March 2019 Private Placement is affiliated with one of the accredited investors in the Initial Private Placement. The aggregate cash proceeds from the March 2019 Private Placement were $5.8 million in cash (after an 11.0% discount or $0.7 million). The net proceeds were approximately $5.0 million after estimated transaction costs payable by the Company of $0.8 million. The transaction costs consisted of 85,000 shares of Common Stock issued to the existing holders of the Series A Preferred Stock for their consent at a cost of approximately $0.5 million and direct transaction costs of approximately $0.3 million related to due diligence and professional fees. The net proceeds were allocated based on their relative fair values at issuance of the Series A Preferred Stock and the Common Stock. The allocation of the net proceeds from the March 2019 Private Placement are set forth below (dollars in thousands): Series A Preferred Stock Common Convertible Shares Amount Stock Notes Total Fair value on March 7, 2019: Series A Preferred Stock 6,500 $ 5,313 (1) $ — $ — $ 5,313 Common Stock — — 722 (2) — 722 Convertible Notes — — — — — Total 6,500 $ 5,313 $ 722 $ — $ 6,035 Relative fair value allocation on March 7, 2019: Aggregate cash proceeds on March 7, 2019 6,500 $ 5,093 (3) $ 692 (3) $ — $ 5,785 Incremental and direct costs — (661) (4) (90) (4) — (751) Net carrying value on March 7, 2019 6,500 $ 4,432 $ 602 $ — $ 5,034 (1) The liquidation preference for each share of Series A Preferred Stock on the closing date for the March 2019 Private Placement was $1,000 per share for an aggregate liquidation preference of $6.5 million. The estimated fair value of the Series A Preferred Stock was approximately $5.3 million on March 7, 2019, which is the basis for allocation of the net proceeds. Please refer to Note 11 for further discussion of the valuation methodology employed. (2) The fair value of the issuance of approximately 134,483 shares of Common Stock was based on the closing price of $5.37 per share on the date prior to closing of the transaction. (3) The aggregate cash proceeds of $5.8 million on March 7, 2019 were allocated pro rata based on the fair value of all consideration issued. (4) Incremental and direct costs related to the March 2019 Private Placement were allocated pro rata based on the fair value of all consideration issued. Such costs included the issuance of 85,000 shares of Common Stock to the Initial Private Placement investors in the Series A Preferred Stock for their consent of approximately $0.5 million and financial advisory and professional fees that were incurred of approximately $0.3 million that were either paid or accrued directly by the Company as of March 31, 2019. June 2019 Securities Purchase Agreement On June 20, 2019, the Company entered into a securities purchase agreement (the “June 2019 SPA”) with accredited investors for a private placement (the “June 2019 Private Placement”) of (i) 3,500 shares of Series A Preferred Stock, (ii) 72,414 shares of Common Stock, and (iii) a Convertible Note with no principal balance outstanding. The shares of the Series A Preferred Stock were authorized pursuant to the CoD and are subject to the provisions set forth in an amended Security Agreement, a Convertible Note and a registration rights agreement that is substantially similar in all material respects to the Registration Rights Agreement entered into connection with the 2018 SPA discussed above. The accredited investors in the June 2019 Private Placement are not affiliated with the accredited investors in the March 2019 Private Placement or the Initial Private Placement. The aggregate cash proceeds from the June 2019 Private Placement were $3.3 million in cash (after a 5.0% discount or $0.2 million). The net proceeds were approximately $3.0 million after estimated transaction costs payable by the Company of $0.3 million. The transaction costs consisted of 35,000 shares of Common Stock issued to the existing holders of the Series A Preferred Stock for their consent at a cost of approximately $0.2 million and direct transaction costs of approximately $0.2 million related to professional fees of the investors, existing holders of Series A Preferred Stock and the Company. The net proceeds were allocated based on their relative fair values at issuance of the Series A Preferred Stock and the Common Stock. The allocation of the net proceeds from the June 2019 Private Placement are set forth below (dollars in thousands): Series A Preferred Stock Common Convertible Shares Amount Stock Notes Total Fair value on June 20, 2019: Series A Preferred Stock 3,500 $ 2,997 (1) $ — $ — $ 2,997 Common Stock — — 376 (2) — 376 Convertible Notes — — — — — Total 3,500 $ 2,997 $ 376 $ — $ 3,373 Relative fair value allocation on June 20, 2019: Aggregate cash proceeds on June 20, 2019 3,500 $ 2,954 (3) $ 371 (3) $ — $ 3,325 Incremental and direct costs — (301) (4) (38) (4) — (339) Net carrying value on June 20, 2019 3,500 $ 2,653 $ 333 $ — $ 2,986 (1) The liquidation preference for each share of Series A Preferred Stock on the closing date for the June 2019 Private Placement was $1,000 per share for an aggregate liquidation preference of $3.5 million. The estimated fair value of the Series A Preferred Stock was approximately $3.0 million on June 20, 2019, which is the basis for allocation of the net proceeds. Please refer to Note 11 for further discussion of the valuation methodology employed. (2) The fair value of the issuance of approximately 72,414 shares of Common Stock was based on the closing price of $5.19 per share on the date prior to closing of the transaction. (3) The aggregate cash proceeds of $3.3 million on June 20, 2019 were allocated pro rata based on the fair value of all consideration issued. (4) Incremental and direct costs related to the June 2019 Private Placement were allocated pro rata based on the fair value of all consideration issued. Such costs included the issuance of 35,000 shares of Common Stock to the Initial Private Placement investors in the Series A Preferred Stock for their consent of approximately $0.2 million and financial advisory and professional fees that were incurred of approximately $0.2 million that were either paid or accrued directly by the Company as of June 30, 2019. On April 16, 2021, the Company redeemed 60,000 shares of its 13.00% Series A Preferred Stock at an aggregate total redemption price of $62.3 million. The total price consisted of $60.0 million related to the face value of $1,000 per share of Series A Preferred Stock and $2.3 million or $39.05 per share of Series A Preferred Stock related to the dividends to be earned for the period from April 1, 2021 through July 18, 2021. The redeemed shares of Series A Preferred Stock, along with the dividends were recorded when the redemption offer became mandatorily redeemable on April 16, 2021. The Company funded the redemption with a portion of the proceeds from the March 2021 Offering and the August 2020 Offering, which raised aggregate net proceeds of approximately $80.7 million. On January 5, 2021, the Company entered into an agreement with certain of the holders of its Series A Preferred Stock (the “January 2021 Stock Repurchase Agreement”) to repurchase 10,000 shares of Series A Preferred Stock and the associated obligations pursuant to the Company’s Convertible Secured Promissory Notes outstanding in respect thereof (the “Note Obligations”) for an aggregate purchase price of approximately $8.95 million representing a discount to the face value of such shares of Series A Preferred Stock and no make-whole payments were required. The January 2021 Stock Repurchase Agreement contains customary representations, warranties and covenants of the parties and waivers relating to the purchased shares of Series A Preferred Stock. Upon the closing of the transactions contemplated by the January 2021 Stock Repurchase Agreement, the shares of Series A Preferred Stock purchased by the Company were retired (and the underlying Note Obligations cancelled) and are not eligible for re-issuance by the Company in accordance with the terms of the CoD. On October 30, 2020, the Company entered into an agreement (the “October 2020 Stock Repurchase Agreement”) with certain of the holders of its Series A Preferred Stock to repurchase 5,000 shares of Series A Preferred Stock and the associated Note Obligations for an aggregate purchase price of approximately $4.5 million representing a discount to the face value of such shares of Series A Preferred Stock and no make-whole payments were required. The October 2020 Stock Repurchase Agreement contains customary representations, warranties and covenants of the parties and waivers relating to the purchased shares of Series A Preferred Stock. Subsequent Event On June 18, 2021, the Company issued a notice (the “June 2021 Notice of Redemption”) to redeem the remaining shares of its 13.00% Series A Preferred Stock on July 20, 2021 at an aggregate total redemption price of $88.4 million. The total price consists of $87.8 million related to the face value of $1,000 per share of Series A Preferred Stock and $0.6 million or $6.86 per share of Series A Preferred Stock related to the dividends to be earned for the period from July 1, 2021 through July 19, 2021. The redeemed shares of the Series A Preferred Stock, along with the dividends, will be recorded on the redemption date of July 20, 2021. The Company funded the redemption with a five year term loan of $90 million, which was entered into on July 20, 2021 (the “Credit Facility”). The Credit Facility will bear interest at the London Interbank Offered Rate (“LIBOR”) plus a margin ranging from 1.75% to 2.50% and contains certain financial covenants, including a minimum fixed charge coverage ratio, a total leverage ratio, and a minimum liquidity of $20 million in U.S. cash. Annual minimum principal payments over the five year term for the Credit Facility will be 5%, 5%, 7.5%, 7.5%,and 10%, respectively, with the remaining balance due at the end of the term. The changes in the net carrying value of Series A Preferred Stock from December 31, 2020 to June 30, 2021 are set forth below (dollars in thousands): Series A Preferred Stock Shares Amount Net carrying value as of December 31, 2020 154,911 $ 137,854 Issuance of shares to settle PIK Dividends on January 4, 2021 1,193 1,193 Repurchase of 10,000 shares on January 5, 2021 (10,000) (8,913) Accretion of discount for the three months ended March 31, 2021 — 1,473 Net carrying value as of March 31, 2021 146,104 131,607 Issuance of shares to settled PIK Dividends on April 1, 2021 1,051 1,051 Redemption of 60,000 shares on April 16, 2021 (60,000) (54,327) Accretion of discount for the three months ended June 30, 2021 — 804 Net carrying value as of June 30, 2021 87,155 $ 79,135 For future calculations of earnings applicable to common stockholders, the aggregate discount applicable to the Series A Preferred Stock will be accreted using the effective interest method from the respective issuance dates through July 19, 2023 when the holders of all outstanding shares of Series A Preferred Stock were able to first elect to redeem their shares for cash. Agreements Related to Private Placement Transactions In connection with the completion of the Initial Private Placement, the Company, among other customary closing actions, (i) filed the CoD, (ii) entered into the Registration Rights Agreement, (iii) delivered a Convertible Note to each Purchaser, and (iv) entered into the Security Agreement in respect of the Company’s assets collateralizing the amounts that may become payable pursuant to the Promissory Notes if certain redemption provisions of the Series A Preferred Stock are triggered in the future. In connection with both the March 2019 Private Placement and June 2019 Private Placement, the Company entered into a securities purchase agreement, a Registration Rights Agreement, a First (March 2019) and Second (June 2019) Amendment to the Security Agreement, and issued Convertible Notes to each investor, in each case substantially in the same form as entered into by the Company in the Initial Private Placement. Certificate of Designations of the Series A Preferred Stock and Dividends The CoD authorizes the issuance of up to 180,000 shares of Series A Preferred Stock. The holders of Series A Preferred Stock are entitled to, from the respective issuance date, a cash dividend of 10.0% per annum (the “Cash Dividends”) and a payment-in-kind dividend of 3.0% per annum (the “PIK Dividends” and, together with the Cash Dividends, the “Dividends”) for the first five years following the initial June 2018 closing and thereafter all dividends accruing on such Series A Preferred Stock will be payable in cash at a rate of 13.0% per annum. The Series A Preferred Stock is classified as mezzanine equity in the Company’s consolidated balance sheet as of June 30, 2021 and December 31, 2020 since the holders have redemption rights beginning on July 19, 2023 (and earlier under certain circumstances). As required under the CoD, the Cash Dividends and PIK Dividends for the period in which the Series A Preferred Stock was outstanding during the second quarter of 2021 were settled on July 1, 2021 to holders of record on June 16, 2021. Accordingly, the Company accrued a current liability for accrued Cash Dividends through June 30, 2021 for $2.2 million. A long-term liability was recorded for $0.6 million of PIK Dividends that accrued through June 30, 2021, which were settled through the issuance of 647 shares of Series A Preferred Stock on July 1, 2021. Presented below is a summary of total and per share dividends declared through June 30, 2021 (dollars in thousands, except per share amounts): Dividends Payable in: Total Dividends Cash PIK Dividends Per Share Dividends payable as of December 31, 2020 $ 3,842 $ 1,193 $ 5,035 $ 32.50 Cash Dividends 10% per annum 3,660 — 3,660 23.40 PIK Dividends 3% per annum — 1,098 1,098 7.02 Fractional PIK shares settled for cash 47 (47) — — Less dividends settled January 4, 2021 (4,009) (1,193) (5,202) (33.26) Dividends payable as of March 31, 2021 3,540 1,051 4,591 32.14 Cash Dividends 10% per annum 2,179 — 2,179 25.00 PIK Dividends 3% per annum — 654 654 7.50 Fractional PIK shares settled for cash 7 (7) — — Less dividends settled April 1, 2021 (3,540) (1,051) (4,591) (52.68) Dividends payable as of June 30, 2021 $ 2,186 $ 647 $ 2,833 $ 32.51 The liquidation value of the Series A Preferred Stock is convertible into shares of Common Stock at an initial conversion rate of $10.00 per share for a total of 8.7 million shares of Common Stock based on 87,155 shares of Series A Preferred Stock outstanding as of June 30, 2021. Each share of Series A Preferred Stock is convertible at the holder’s option into one share of Common Stock at a conversion price equal to the quotient of (i) the Liquidation Preference (as defined below), and (ii) $10.00 (subject to appropriate adjustment in the event of a stock split, stock dividend, combination or other similar recapitalization) (the “Per Share Amount”). The Company has the right to convert outstanding shares of Series A Preferred Stock into Common Stock for the Per Share Amount after July 19, 2021, if the Company’s volume weighted average stock price for at least 30 trading days of the 45 consecutive trading days immediately preceding such conversion is greater than $11.50 per share. The Company can exercise this right to convert twice per calendar year for a maximum number of shares of Common Stock equal to the amount that has publicly traded over the 60 consecutive trading days prior to the conversion date (less any shares of Common Stock that have been issued pursuant to any such conversion during such 60-day period). The Series A Preferred Stock will become mandatorily redeemable, upon the election by the holders of a majority of the then outstanding shares, on or after July 19, 2023. Any and all of the then outstanding liquidation value of the Series A Preferred Stock plus any capitalized PIK Dividends and any unpaid accrued Cash Dividends not previously included in the Liquidation Preference (the “Redemption Amount”) is required to be repaid in full in cash on such redemption date or satisfied in the form of obligations under the Convertible Notes. Additionally, in certain circumstances the Company may require the holders of shares of the Series A Preferred Stock to convert into shares of Common Stock in lieu of cash payable upon redemption. The Series A Preferred Stock will also become mandatorily redeemable at any time upon the reasonable determination of the holders of a majority of the Series A Preferred Stock then outstanding of the occurrence of a Material Adverse Effect or the occurrence of a Material Litigation Effect (as such terms are defined in the CoD), with the Redemption Amounts payable automatically becoming payment obligations pursuant to the Convertible Notes with a concurrent cancellation of the shares of the Series A Preferred Stock, unless under certain circumstances, the Company redeems the Series A Preferred Stock for cash at such time. Prior to July 19, 2021, the Company has the right to redeem up to $80.0 million of shares of the Series A Preferred Stock for cash amounts equal to the Redemption Amount which would include a make-whole premium that provides the holders thereof with full yield maintenance as if the Series A Preferred Stock was held until July 19, 2021, provided that such redemptions are subject to certain conditions and limitations. After July 19, 2021, the Company will have the right to redeem shares of Series A Preferred Stock for a cash per share amount equal to the Redemption Amount. The holders of Series A Preferred Stock may exercise their conversion rights prior to any optional redemption. In the event of a liquidation, dissolution or winding up of the Company, the Series A Preferred Stock is entitled to a liquidation preference in the amount of the greater of (i) $1,000 plus accrued but unpaid Dividends (the “Liquidation Preference”), and (ii) the per share amount of all cash, securities and other property to be distributed in respect of the Common Stock such holder would have been entitled to receive for its Series A Preferred Stock on an as-converted basis. In the event of a liquidation, dissolution or winding up of the Company prior to July 19, 2021, the holders are entitled to a make-whole premium that provides the holders thereof with full yield maintenance as if the shares of Series A Preferred Stock were held until July 19, 2021. Until approximately 95% of the Series A Preferred Stock or Convertible Notes are no longer outstanding, the Company is restricted from incurring Indebtedness (as defined in the June 2019 SPA, March 2019 SPA and 2018 SPA), subject to certain exceptions. Registration Rights Agreement The original Registration Rights Agreement required the Company to register the resale of the shares of Common Stock and Series A Preferred Stock issued pursuant to the 2018 SPA. The Company satisfied such registration requirements in November 2018. The Registration Rights Agreements, entered into in connection with both the March 2019 and June 2019 Private Placements, required the Company to register the resale of the shares of Common Stock and Series A Preferred Stock pursuant to the March 2019 SPA and the June 2019 SPA within 120 days of the respective March 7, 2019 and June 20, 2019 closing dates. The Company satisfied all such registration requirements in July 2019. Each such Registration Rights Agreement also includes customary “piggyback” registration rights, suspension rights, indemnification, contribution, and assignment provisions. |