•
Any Liquidation Event (as defined in the Certificate of Determination); and
•
Any authorization or any designation, whether by reclassification or otherwise, of any new class or series of capital stock or any other securities convertible into equity securities of the Company ranking on a parity with or senior to the Series A Preferred Stock in rights of redemption, liquidation preference, voting or dividends, or any increase in the authorized or designated number of any such new class or series.
Liquidation
. The Certificate of Determination provides for (a) a Series A Liquidation Preference: (b) an Additional Series A Preference Distribution; (c) a Common Preference Distribution; and (d) Residual Distributions, as follows:
Upon any Liquidation Event (as defined in the Certificate of Determination), whether voluntary or involuntary, before any other distribution or payment shall be made to the holders of any shares of APC’s capital stock, the holders of the Series A Preferred will be entitled to be paid, out of APC’s assets or surplus funds legally available for distribution, their pro rata share of an amount equal to (i) all accrued and unpaid amounts of the Series A Dividend and (ii) $545,000,000, which is the Series A Purchase Price (the “Series A Liquidation Preference”).
After the payment in full of the Series A Liquidation Preference, the remaining APC assets or surplus funds legally available for distribution, if any, in amount equal to the positive difference between the then-current fair value of the Healthcare Services Assets, as reasonably determined by the Board, and the Series A Liquidation Preference, shall be distributed ratably 90% to the holders of the Series A Preferred and 10% to the holders of the common stock (the “Additional Series A Preference Distribution”).
After the payment in full of the Additional Series A Preference Distribution, the remaining APC assets or surplus funds legally available for distribution, if any, will be distributed ratably 90% to the holders of the common stock and 10% to the holders of the Series A Preferred, until the holders of the Series A Preferred have received an aggregate amount equal to the amount received by the holders of the common stock (the “Common Preference Distribution”).
After the payment in full of the Series A Liquidation Preference, the Additional Series A Preference Distribution and the Common Preference Distribution, the remaining APC assets or surplus funds legally available for distribution, if any, will be distributed ratably to the holders of the common stock.
Special Purpose Shareholders Agreement
In connection with the execution of the Preferred Stock Purchase Agreement, APC and AP-AMH, as the sole holder of APC Series A Preferred Stock, also entered into the Special Purpose Shareholders Agreement. Pursuant to this agreement, AP-AMH agreed to fund any losses or deficits incurred at any time or from time to time by APC with respect to its Healthcare Services Assets. Specifically, AP-AMH has agreed to make one or more capital contributions to APC in an amount sufficient to cover any such losses or deficits resulting from the Healthcare Services Assets. In exchange, APC agreed that it will not take any action without the prior written approval of AP-AMH, as the sole Series A Preferred stockholder, with respect to the following matters:
•
The lease, sale, exchange, transfer, mortgage or other assignment or disposal of any or all of the Healthcare Services Assets;
•
The issuance of any shares of APC Series A Preferred or any warrant, option, right or other security convertible into or exchangeable for APC Series A Preferred, or the creation of any new class or series of stock;
•
The adoption, amendment, restatement, repeal or modification of the Special Shareholders Agreement, the Articles of Incorporation and/or the Bylaws of APC;
•
The formation of any subsidiaries, joint ventures, or other entities by APC or in which APC has an equity or debt interest, which by their nature, are or would become Healthcare Services Assets;
•
Any action related to the amendment, modification or termination of any agreements with NMM (or any successor);