Item 8.01
Other Events.
Termination of Tender Offer
As previously announced, on July 31, 2018, the Company filed a
Tender Offer Statement on Schedule TO with respect to the right of each holder of 5.50% Notes to sell, and the obligation of the Company to repurchase for cash, all or a portion of each such holders 5.50% Notes on September 19, 2018, on the terms and subject to the conditions set forth in the Fundamental Change Company Notice, Make-Whole Fundamental Change Company Notice and Offer to Repurchase to Holders of the 5.50% Convertible Senior Notes due 2020, dated July 31, 2018, as amended August 10, 2018 (the
Tender Offer
). On September 18, 2018, the Company terminated the Tender Offer.
As a result of such termination, none of the 5.50% Notes that have been tendered in the Tender Offer will be accepted for purchase and no consideration will be paid or become payable to holders of 5.50% Notes who have tendered their 5.50% Notes in the Tender Offer. All 5.50% Notes previously tendered and not withdrawn will be promptly returned or credited back to the respective holders thereof.
The failure of the Company to complete the Tender Offer in accordance with the terms of the indenture (as amended, restated, supplemented or otherwise modified from time to time, the
5.50% Notes Indenture
), dated April 7, 2015, governing the 5.50% Notes will constitute an Event of Default thereunder and will result in a cross-default under the 13% Notes Indenture and 6.50% Notes Indenture. Accordingly, the holders of the 5.50% Notes and 6.50% Notes (or the trustee under the applicable indenture) will have the right to accelerate and declare due and payable immediately all principal and accrued but unpaid interest with respect to the 5.50% Notes and 6.50% Notes, respectively, and to exercise all other rights and remedies available pursuant to the applicable indenture, in each case, subject to any applicable notice or cure periods.
Convertible Note Payments
The Company making any payment due to the holders of the 5.50% Notes during the Forbearance Period would constitute an Event of Termination under the Forbearance Agreement. Failure by the Company to make the interest payment due on October 1, 2018 to the holders of the 5.50% Notes as required pursuant to the 5.50% Notes Indenture, subject to the cure period specified in the 5.50% Note Indenture, would constitute an Event of Default under the 5.50% Notes Indenture and would result in a cross-default under the 13% Notes Indenture and 6.50% Notes Indenture. Accordingly, the holders of the 5.50% Notes and 6.50% Notes (or the trustee under the applicable indenture) would have the right to accelerate and declare due and payable immediately all principal and accrued but unpaid interest with respect to the 5.50% Notes and 6.50% Notes, respectively, and to exercise all other rights and remedies available pursuant to the applicable indenture, in each case, subject to any applicable notice or cure periods.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements that involve substantial risks and uncertainties. In some cases, you can identify forward-looking statements by the words may, might, will, could, would, should, expect, intend, plan, anticipate, believe, estimate, project, potential, continue, seek to and ongoing, or the negative of these terms, or other comparable terminology intended to identify statements about the future. These statements involve known and unknown risks, uncertainties and other factors that may cause the Companys actual results, levels of activity, performance or achievements to be materially different from the information expressed or implied by these forward-looking statements. Although the Company believes that it has a reasonable basis for each such forward-looking statement, the Company cautions you that these statements are based on a combination of facts and factors currently known by the Company and its expectations of the future, about which it cannot be certain, including, but not limited to, risks related to: the Companys ongoing discussions regarding a potential restructuring of its obligations and other strategic alternatives and its ability to consummate any such transaction and/or address its long-term capital structure needs; the ongoing Events of Default under the indentures governing the Existing Notes and the ability of the Companys creditors, including the holders of the Existing Notes, to accelerate the maturity of the Companys outstanding indebtedness or otherwise exercise such creditors rights and remedies against the Company; the Companys ability to continue as a going concern; the Companys stock price and the Nasdaq Capital Market, the liquidity of the trading market with respect thereto, including following the potential delisting of such shares from the possible need to seek bankruptcy protection; the Companys ability to recruit or retain key scientific or management personnel or to retain our
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