Item 2.03 Creation of a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The new notes are the Company’s
general unsecured unsubordinated obligations and rank senior in right of payment to any of the Company’s indebtedness that
is expressly subordinated in right of payment to the new notes, equal in right of payment to any of the Company’s unsecured
indebtedness that is not so subordinated, effectively junior in right of payment to any of the Company’s secured indebtedness
to the extent of the value of the assets securing such indebtedness and structurally junior to all indebtedness and other liabilities
(include trade payables) of the Company’s subsidiaries.
The new notes will pay interest
semiannually in arrears at a rate of 3.75% per annum on January 15 and July 15 of each year, beginning on January 15, 2018. The
new notes will mature on July 15, 2022, unless earlier converted or repurchased.
Prior to April 15, 2022, the
new notes will be convertible at the option of the holder under certain circumstances and during certain periods. The new notes
may be surrendered for conversion without regard to these conditions at any time from, and including, April 15, 2022 to, and including,
the business day immediately preceding the maturity date. Upon conversion, the Company will have the right to pay or deliver,
as the case may be, cash, shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”)
or a combination of cash and shares of Common Stock, at the Company’s election.
The initial conversion rate for
the new notes is 174.8252 shares of the Common Stock per $1,000 principal amount of the new notes (subject to certain adjustments),
which is equivalent to a conversion price of approximately $5.72 per share. The conversion rate for the new notes will be subject
to adjustment in some events but will not be adjusted for any accrued and unpaid interest.
A holder that surrenders new
notes for conversion in connection with a “make-whole fundamental change” (as defined in the Indenture) that occurs
before the maturity date may in certain circumstances be entitled to an increased conversion rate.
The Company may not redeem the
new notes prior to maturity.
Upon the occurrence of certain
fundamental changes, the holders of the new notes may require the Company to repurchase all or a portion of their new notes for
cash at a price equal to 100% of the principal amount of the new notes to be repurchased, plus accrued and unpaid interest to,
but excluding, the fundamental change repurchase date.
The Indenture contains customary
terms and covenants, including that upon certain events of default occurring and continuing, either the Trustee or the holders
of not less than 25% in aggregate principal amount of the new notes then outstanding may declare the entire principal amount of
all the new notes, and the interest accrued on such new notes, if any, to be immediately due and payable. Upon events of default
involving specified bankruptcy events involving the Company, the new notes will be due and payable immediately.
The foregoing descriptions of
the new notes and the Indenture do not purport to be complete and are qualified in their entirety by reference to the full text
of the new notes and the Indenture. A copy of the form of Indenture, including the form of new note, is attached hereto as Exhibit
4.1 and incorporated herein by reference.