The Merger Agreement also provides that, in connection with a termination of the Merger
Agreement under specified circumstances, including due to the entry by the Company into a definitive agreement with respect to a Superior Proposal, or certain other triggering events, the Company may be required to pay Parent a termination fee of
$15,000,000.
The foregoing description of the Merger Agreement and the transactions contemplated thereunder (collectively, the
Transactions) is not complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and incorporated herein by reference.
Tender and Support Agreements
Concurrently with entering into the Merger Agreement, the Paloma Entities entered into Tender and Support Agreements (collectively, the
Tender and Support Agreements) with the following counterparties (collectively, the Supporting Stockholders): (i) Franklin Advisers, Inc., as investment manager on behalf of certain funds and accounts
(Franklin), (ii) Anchorage Illiquid Opportunities V, L.P. and AIO V AIV 1 Holdings, L.P. and (iii) each of the directors of the Company and certain members of the Companys management.
The Tender and Support Agreements provide that each Supporting Stockholder will validly tender (or cause to be tendered) pursuant to the Offer
its Subject Shares (as defined herein) pursuant to the terms of the Offer as soon as practicable, but no later than ten (10) business days following commencement of the Offer (unless such Shares are acquired at a later date). The term
Subject Shares means, with respect to a Supporting Stockholder, Shares that on the date of the Tender and Support Agreements have been issued and are outstanding and beneficially owned by any Supporting Stockholder, together with
any unissued Shares that are thereafter issued to or otherwise directly or indirectly acquired by, or become beneficially owned by, any Supporting Stockholder during the support period, including, without limitation, any Shares acquired by such
Supporting Stockholder (i) upon the exercise of any Warrants after the date of the Tender and Support Agreements, (ii) in the case of Franklin only, upon the conversion or exchange of its 13.50% convertible second lien senior secured notes
due 2023 of the Company (the Convertible Notes), or (iii) by means of any purchase, dividend, distribution, stock split, recapitalization, combination or exchange of Shares, merger, consolidation, reorganization or other
change or transaction, in one or a series of related transactions, of or by the Company or otherwise.
In addition, pursuant to the Tender
and Support Agreements, each Supporting Stockholder agrees, in the event there is any vote of the Companys stockholders, not to vote any Subject Shares in favor of, or consent to, and will vote against and not consent to, the approval of any
(i) Acquisition Proposal (as defined in the Tender and Support Agreements), other than the Merger and the other Transactions, (ii) corporate action or proposal submitted for approval by stockholders of the Company (including, without
limitation, any amendment to the Companys charter or bylaws), the consummation of which could impede, interfere with, prevent or delay the consummation of the Transactions, including, without limitation, the Merger and the purchase of all
Shares validly tendered pursuant to the Offer and not withdrawn, or (iii) other corporate action or proposal submitted for approval by stockholders of the Company, substantially facilitating any of the foregoing matters described in the
immediately preceding clauses (i) or (ii), or that could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of such Supporting Stockholder under the Tender and Support
Agreements. Each Supporting Stockholder agreed to ensure that, during the support period, any other person having voting power with respect to any of such Supporting Stockholders Subject Shares will not vote any of such Subject Shares in favor
of or consent to, and will vote against, the approval of the matters described in clauses (i) through (iii) of the preceding sentence.
The Tender and Support Agreements automatically terminate upon the earlier to occur of (i) the mutual written agreement of Parent and the
Supporting Stockholders, (ii) the termination of the Merger Agreement in accordance with its terms, (iii) the Effective Time, (iv) the occurrence of an Adverse Recommendation Change (as defined in the Merger Agreement) in compliance
with the provisions of the Merger Agreement and (v) the date of any amendment to the Merger Agreement that reduces the Offer Price or the Merger Consideration or changes the form of consideration payable in the Offer to Purchase. Upon
termination of the Tender and Support Agreements, no party will have any further obligations or liabilities under the Tender and Support Agreements.
As of November 17, 2021, the Supporting Stockholders beneficially own, in the aggregate, Shares representing approximately 36.14% of all
outstanding Shares (based on 14,391,104 Shares outstanding as of November 17, 2021, as reported by the Company in the Merger Agreement). Schedule D attached hereto sets forth the names and number of Shares and Convertible Notes that are
beneficially owned by each Supporting Stockholder.
The foregoing description of the Tender and Support Agreements does not purport to be
complete and is qualified in its entirety by the full text of the Tender and Support Agreements, copies of which are filed as Exhibit 10.1, 10.2 and 10.3 hereto and are incorporated herein by reference.
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