Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
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Item 6 of the Schedule 13D is hereby amended and restated by and replaced with the following:
The information set forth in Items 3 and 4 of this Amendment No. 7 to the Schedule 13D is incorporated herein by reference.
Purchase Agreement and the SPA Amendment
Pursuant to the SPA Amendment, dated May 11, 2021:
Standstill Obligations. Rockwell is subject to a standstill provision, except at the express invitation of the Company in its sole
discretion, ending on the latest of (a) July 19, 2021 (the third anniversary of the original closing), (b) the one month anniversary of any expiration or termination of the Strategic Alliance Agreement and (c) the date upon which the
Director Period expires (such period, the Standstill Period). During the Standstill Period, Rockwell will not, among other things and subject to specified exceptions: (a) acquire any securities of the Company if, immediately after
such acquisition, Rockwell, together with its affiliates, would beneficially own more than 9.0% of the outstanding Common Stock; (b) propose any merger, consolidation, business combination, tender offer or similar transaction involving the
Company; (c) solicit proxies or consents to vote any securities of the Company; or (d) form, join or participate in a third party group (as such term is used in the rules of the SEC).
Transfer Restrictions. For a period ending on the earlier of (a) September 30, 2023 and (b) the one month anniversary of
any expiration or termination of the Strategic Alliance Agreement, Rockwell is restricted from transferring the Shares subject to certain exceptions. Rockwell is allowed to transfer Shares (a) in an open market transaction in the aggregate in
any 90-day period, a number of shares equal to 1.0% of the total outstanding shares of Common Stock; and (b) in a Marketed Underwritten Share Offering, in the aggregate in any one-year period, a number of shares that does not exceed 5% of the total outstanding shares of Common Stock as of the closing date of the first such offering or sale, provided that no more than one such offering may
be conducted in any one-year period.
Voting Obligations. During the Standstill Period,
Rockwell will be required to (a) cause all of the shares of Common Stock that it beneficially owns to be present for quorum purposes at any meeting of the shareholders of the Company and (b) vote all of such shares in accordance with the
Company Boards recommendations with respect to the election of directors, all business involving compensation matters (including new or amended equity plans and say on pay proposals), and the ratification of the appointment of the
Companys independent public accounting firm set forth in the Companys proxy statement for the meeting.
Registration Rights
Agreement
On July 19, 2018, in connection with, and as a condition to the consummation of, the Investment, Rockwell and the
Company entered into a Registration Rights Agreement (the Registration Rights Agreement). Under the terms of the Registration Rights Agreement, Rockwell received customary registration rights subject to market standstill provisions, and
under the Registration Rights Agreement, the Company is obligated to file a resale shelf registration statement with respect to the Shares not later than July 19, 2019.
The foregoing descriptions of the Purchase Agreement, the SPA Amendment, the Registration Rights Agreement and the Trading Plans do not
purport to be complete and are subject to, and are qualified in their entirety by, the full text of the Purchase Agreement, the SPA Amendment, Registration Rights Agreement and the form of Trading Plan, which are filed herewith as Exhibits 1, 2, 3,
and 4, respectively, to this Amendment No. 7 to the Schedule 13D and incorporated herein by reference.
Other than the Purchase
Agreement, the SPA Amendment, the Registration Rights Agreement and the Trading Plan, to the knowledge of Rockwell, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between Rockwell, or any Rockwell
subsidiary or any person listed on Schedule A, and any person with respect to the securities of the Company, including, but not limited to, transfer or voting of any of the securities, finders fees, joint ventures, loan or option arrangements,
puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or
investment power over such securities other than standard default and similar provisions contained in loan agreements.