| | The information set forth in Item 3 of this Schedule 13D is incorporated herein by reference.
Summary of May 18, 2026 Agreements
On May 18, 2026, the Issuer commenced an exchange offer (the "Exchange Offer") to exchange any and all of its 5.00% Convertible Senior Notes due 2027 (the "Existing Convertible Notes") for a pro rata portion of (i) up to $72.0 million in aggregate principal amount of its new 7.50% Convertible Senior Secured First Lien Notes due 2030 (the "New Convertible Notes"), (ii) up to 317,647,058 Common Shares (the Common Shares issued in the Exchange Offer, the "New Shares") or, in lieu of issuing Common Shares to the extent any investor would beneficially own greater than 9.99% of the outstanding Common Shares, prefunded warrants to purchase Common Shares (the "Prefunded Warrants") and (iii) up to 150,000,000 warrants to purchase Common Shares (the "Purchase Warrants").
On June 4, 2026, following receipt of the requisite consents in the concurrent solicitation of consents (the "Consent Solicitation") from holders of the Existing Convertible Notes, the Issuer and Wilmington Trust, National Association, as trustee under the indenture, dated as of May 21, 2020, and a first supplemental indenture, dated as of May 21, 2020 (together, the "Existing Convertible Notes Indenture"), entered into a supplemental indenture to eliminate substantially all of the restrictive covenants, certain of the default provisions and certain other provisions contained in the Existing Convertible Notes Indenture.
Also on May 18, 2026, holders of approximately 75.2% of the Existing Convertible Notes, including Valence and Cogence (the "Supporting Noteholders"), entered into a transaction support agreement with the Issuer (the "Transaction Support Agreement") to support the Exchange Offer and Consent Solicitation, including by tendering all of their Existing Convertible Notes in the Exchange Offer and delivering related consents.
$30,290,000 aggregate principal amount of Existing Convertible Notes held by Valence and Cogence collectively were tendered to the Issuer prior to 5:00 p.m., New York City time, on June 2, 2026 (the "Extended Early Tender Date"). The exchange of New Convertible Notes, New Shares, and Purchase Warrants for Valence's and Cogence's Existing Convertible Notes was finalized on June 4, 2026 (the "Early Settlement Date").
On the Early Settlement Date, and in exchange for their Existing Convertible Notes, Valence received $10,369,000 aggregate principal amount of New Convertible Notes, 45,745,939 New Shares, and 21,602,250 Purchase Warrants, plus accrued and unpaid interest on such Existing Convertible Notes from, and including, the most recent interest payment date to, but excluding, the Early Settlement Date, equal to $12,006.25, and Cogence received $535,000.00 aggregate principal amount of New Convertible Notes, 2,361,705 New Shares, and 1,115,250 Purchase Warrants, plus accrued and unpaid interest on such Existing Convertible Notes from, and including, the most recent interest payment date to, but excluding, the Early Settlement Date, equal to $619.58. In connection with the early settlement of the Exchange Offer, the Issuer issued $65,174,000 in aggregate principal amount of New Convertible Notes, 254,150,441 New Shares, 33,402,727 Prefunded Warrants and 135,789,000 Purchase Warrants in exchange for the validly tendered and accepted Existing Convertible Notes.
Contemporaneously with their entrance into the Transaction Support Agreement, each of Valence and Cogence entered into a voting agreement (the "Voting Agreements") with the Issuer whereby Valence and Cogence agreed to appear at the Issuer's special meeting of stockholders to be held following the Exchange Offer (including any adjournment or postponement thereof, the "Special Meeting") or otherwise cause the New Shares received by them in the Exchange Offer to be counted as present thereat for purposes of determining a quorum, and be present (in person or by proxy) and vote, or cause to be voted, all of the New Shares beneficially owned by them in favor of the Stockholder Proposals (as defined below). It was a condition to the Exchange Offer and Consent Solicitation that valid, binding and enforceable agreements provided by Supporting Noteholders to vote the New Shares received in the Exchange Offer in favor of the Stockholder Proposals were in place with respect to the New Shares to be held by the parties to the Transaction Support Agreement. On June 9, 2026, the Issuer filed a definitive proxy statement with the SEC announcing that the Special Meeting will be held on July 14, 2026, at 9:00 a.m. Pacific Time, unless postponed or adjourned to a later date.
Exchange Offer Memorandum and Consent Solicitation Statement
The Exchange Offer and Consent Solicitation will expire at 5:00 p.m., New York City time, on June 16, 2026 (such time and date, as the same may be extended, the "Expiration Deadline"), unless extended or earlier terminated. The withdrawal deadline for the Exchange Offer and Consent Solicitation occurred at 5:00 p.m., New York City time, on June 1, 2026 (the "Withdrawal Deadline"), and on June 4, 2026, the Issuer completed the early settlement of the exchange of the Existing Convertible Notes validly tendered (and not validly withdrawn) in the Exchange Offer by the Extended Early Tender Date. If, at or prior to the Expiration Deadline, unless extended, all conditions to the Exchange Offer have been or are concurrently satisfied or waived, the Issuer will accept for exchange all Existing Convertible Notes validly tendered in the Exchange Offer at or prior to the Expiration Deadline, and not validly withdrawn at or prior to the Withdrawal Deadline. The final settlement date, if any, will be promptly after the Expiration Deadline and is currently expected to occur on June 18, 2026, the second business day immediately following the Expiration Deadline.
Eligible holders who validly tendered and did not validly withdraw their Existing Convertible Notes and delivered related consents at or prior to the Extended Early Tender Date were eligible to receive, for each $1,000 in aggregate principal amount of Existing Convertible Notes validly tendered for exchange, $360 in aggregate principal amount of New Convertible Notes, 1,588.2353 Common Shares or Prefunded Warrants and 750 Purchase Warrants. Eligible holders who validly tender Existing Convertible Notes after the Extended Early Tender Date but at or prior to the Expiration Deadline, and whose Existing Convertible Notes are accepted for exchange by the Issuer, will receive, for each $1,000 in aggregate principal amount of Existing Convertible Notes validly tendered for exchange, $360 in aggregate principal amount of New Convertible Notes and 1,588.2353 Common Shares or Prefunded Warrants.
Transaction Support Agreement
The Transaction Support Agreement was subject to certain conditions, including a condition that the Issuer would not consummate the Exchange Offer unless holders of at least 98% of the aggregate principal amount of Existing Convertible Notes exchanged their Existing Convertible Notes in the Exchange Offer. On June 3, 2026, the Issuer announced that $181,052,000 in aggregate principal amount of Existing Convertible Notes, representing 90.526% of the aggregate outstanding principal amount of Existing Convertible Notes, had been validly tendered and not validly withdrawn as of the Extended Early Tender Date, and that the Issuer and the Supporting Noteholders representing a majority of the Existing Convertible Notes held by Supporting Noteholders had agreed to amend the minimum participation condition to require tender of a minimum of 90.5% of the aggregate principal amount of Existing Convertible Notes.
On the Early Settlement Date, the Issuer accepted the Early Tendered Notes for exchange, caused such notes to be delivered to the trustee under the Existing Convertible Notes Indenture for cancellation, and, following such cancellation, $18,948,000 aggregate principal amount of Existing Convertible Notes remained outstanding. In accordance with the terms of the Transaction Support Agreement, the Transaction Support Agreement automatically terminated on the Early Settlement Date.
Voting Agreements
The Voting Agreements provide that, from and after the initial settlement date of the New Convertible Notes, New Shares, and Purchase Warrants in the Exchange Offer and until 5:00 p.m., New York City time on the date that is the earlier of (i) the record date of the Special Meeting and (ii) the date that is two business days following the initial settlement date of the New Convertible Notes, New Shares, and Purchase Warrants in the Exchange Offer, Valence and Cogence will not transfer, sell, exchange, assign or convey any legal or beneficial ownership interest in, or any right, title or interest therein (including any right or power to vote), or otherwise dispose of (whether by sale, liquidation, dissolution, dividend, distribution or otherwise) any New Shares, or enter into any contract, option or other agreement with respect to any of the foregoing, subject to certain exceptions as included therein. Such restrictions terminated on June 5, 2026, the record date of the Special Meeting.
"Stockholder Proposals" mean proposals to approve: (i) in accordance with Nasdaq Listing Rule 5635(d), the potential issuance of Common Shares upon conversion of up to $72.0 million aggregate principal amount of New Convertible Notes, make-whole payments in Common Shares and exercise of up to 150,000,000 Purchase Warrants, which would, in the aggregate, exceed 20% of the Common Shares issued and outstanding immediately prior to the commencement of the Exchange Offer; (ii) an amendment and restatement of the Issuer's 2019 Incentive Award Plan (the "Restated Plan") to increase the number of Common Shares authorized for issuance thereunder; (iii) an amendment to increase the Issuer's authorized Common Shares from 700,000,000 to 4,000,000,000, to support, among other things, Common Shares issuable upon conversion of the New Convertible Notes, Prefunded Warrants and Purchase Warrants and under the Restated Plan; (iv) a series of 30 alternate amendments to the Issuer's charter to effect (x) a reverse stock split (on a range of proposed ratios of not less than 1-for-10 on the low end and not greater than 1-for-150 on the high end), with the exact ratio to be determined by the board of directors of the Issuer at a later date and (y) a proportionate reduction in the number of authorized Common Shares (and corresponding decrease to the total number of authorized shares of the Issuer's capital stock); and (v) one or more adjournments of the Special Meeting, if necessary, to solicit additional proxies if there are not sufficient votes to approve the foregoing proposals at the Special Meeting or any adjournment(s) thereof.
Indenture
The New Convertible Notes were issued pursuant to an indenture, dated as of June 4, 2026 (the "Indenture"), by and between the Issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent.
The New Convertible Notes are secured, first lien obligations of the Issuer and will mature on July 1, 2030, unless earlier converted or repurchased in accordance with their terms; provided that the New Convertible Notes have a springing maturity date of March 2, 2027, which is 91 days prior to the stated maturity of the Existing Convertible Notes, if more than $4.0 million of the Existing Convertible Notes remain outstanding at such time. The New Convertible Notes bear interest at a rate of 7.50% per annum from June 4, 2026, payable in cash semi-annually in arrears on January 1 and July 1 of each year, starting on January 1, 2027.
The conversion rate for the New Convertible Notes is initially the number of Common Shares per $1,000 principal amount of New Convertible Notes equal to the quotient of $1,000 divided by a 10% premium to a reference price equal to the greater of (i) $0.17 and (ii) the lower of (x) $0.34 and (y) the average of the daily volume-weighted average prices for the seven (7) consecutive VWAP trading days beginning on, and including, the VWAP trading day immediately following the final settlement date (the "Reference Price").
Prior to obtaining stockholder approval for the Stockholder Proposals, the Issuer is permitted to satisfy its obligations upon conversion of the New Convertible Notes only in the form of cash settlement. Following such stockholder approval, the Issuer will be permitted to satisfy its obligations under the New Convertible Notes with any settlement method it is otherwise permitted to elect, including by physical settlement of Common Shares. Additionally, a holder of New Convertible Notes will not be permitted to convert its New Convertible Notes at any time prior to the later of (a) the date the conversion rate has been determined and (b) the earlier of (1) the date of the Special Meeting, whether or not approvals of the Stockholder Proposals are obtained and (2) the date that is 61 calendar days following the Early Settlement Date. A "make whole" premium will be payable on the New Convertible Notes through an increase to the conversion rate in certain circumstances to compensate converting holders for interest that would have been payable to the maturity date.
Under certain circumstances and subject to conditions set forth in the Indenture, the Issuer may elect to force a mandatory conversion of the New Convertible Notes.
The Indenture contains a non-waivable beneficial ownership limitation provision providing that no New Convertible Note will be optionally convertible by the applicable economic interest holder, and the Issuer will not effect any conversion of a New Convertible Note, to the extent that, after giving effect to such conversion, such economic interest holder, together with its attribution parties, would beneficially own in excess of 4.99% of the Common Shares outstanding immediately after giving effect to such conversion. An economic interest holder may increase or decrease the beneficial ownership limitation by notice to the Issuer, provided that any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Issuer, and the beneficial ownership limitation may not be increased above 9.99% or decreased below 4.99%.
Purchase Warrant Agreement
The Purchase Warrants were issued pursuant to a warrant agreement, dated as of June 4, 2026, between the Issuer and Computershare, Inc., as warrant agent (the "Purchase Warrant Agreement"). Prior to obtaining stockholder approval for the Stockholder Proposals, the Issuer will be permitted to satisfy its obligations upon exercise of the Purchase Warrants only in the form of cash settlement on a net-cash basis. Following such stockholder approval, the Issuer will be permitted to satisfy its obligations under the Purchase Warrants by physical settlement in Common Shares. The Purchase Warrants will be exercisable at any time from December 3, 2026 until June 4, 2031, with a cash exercise price equal to the greater of (i) $0.34 and (ii) a 25% premium to the Reference Price, subject to adjustment.
The number of Common Shares issuable upon exercise of the Purchase Warrants is subject to customary anti-dilution adjustments in the event of stock dividends, stock splits, stock combinations, reclassifications, distributions and similar events, as well as adjustments in connection with certain degressive issuances at a price below the then-current strike price and a reduction to the strike price in connection with a fundamental change based on a Black-Scholes valuation of the Purchase Warrants. The Purchase Warrant Agreement includes a beneficial ownership limitation that provides that the holders may not exercise (nor may the Issuer allow the exercise of) the Purchase Warrants if, upon giving effect to such exercise, such exercise would cause the aggregate number of Common Shares beneficially owned by the holder (together with its affiliates and any other persons whose beneficial ownership of Common Shares would be aggregated for the purposes of Section 13(d) of the Exchange Act) to exceed 4.99% (or, at the holder's election, up to 9.99%) of the total number of the then issued and outstanding Common Shares; provided that any increase in such percentage will not be effective until the 61st day after such notice is delivered to the Issuer. The Purchase Warrant Agreement provides that the Issuer will prepare a resale registration statement with respect to the Common Shares underlying the Purchase Warrants, subject to certain terms and exceptions.
The foregoing descriptions of the Transaction Support Agreement, the Voting Agreements, the Indenture and the Purchase Warrant Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the form of such agreements or such agreements, as applicable, which are filed as exhibits 99.5, 99.6, 99.7, and 99.8 to this Schedule 13D.
Plans and Proposals
The Reporting Persons expect to review from time to time their investment in the Issuer and may, depending on the market and other conditions, determine to: (i) increase or decrease their position in the Issuer through, among other things, the purchase or sale of Common Shares and/or other equity, debt, derivative securities or other instruments that are convertible into Common Shares, or are based upon or relate to the value of the Common Shares or the Issuer (collectively, "Securities") on the open market or in private transactions, on such terms and at such times as the Reporting Persons may deem advisable, (ii) increase or decrease the beneficial ownership limitations applicable to the New Convertible Notes and/or the Purchase Warrants to the extent permitted under their respective terms and the Indenture and/or Purchase Warrant Agreement, as applicable, and/or (iii) enter into transactions that increase or hedge its economic exposure to the Common Shares or other Securities without affecting the Reporting Persons' beneficial ownership of the Common Shares or other Securities.
Such transactions may take place at any time and without prior notice. There can be no assurance, however, that any Reporting Person or any of their affiliates will take any such actions. The Reporting Persons may, from time to time, engage in discussions with members of the Issuer's management and board of directors, other current and prospective holders of the Issuer's equity and debt securities, industry analysts, existing or potential strategic partners or competitors, investment and financing professionals, equity and debt financing sources and other third parties regarding a variety of matters relating to the Issuer, which, in addition to the matters discussed above, may include, among other things, the Issuer's business, management, capital structure, capital allocation, corporate governance, board composition and strategic alternatives and direction, and may take other steps seeking to bring about changes to increase shareholder value as well as pursue other plans or proposals that relate to or could result in any of the matters set forth in paragraphs (a) through (j), inclusive, of the instructions to Item 4 of Schedule 13D.
Except as set forth above, none of the Reporting Persons has any plans or proposals which relate to, or could result in, any of the matters referred to in paragraphs (a) through (j), inclusive, of the instructions to Item 4 of Schedule 13D. The Reporting Persons may, at any time and from time to time, review or reconsider their position and/or change their purpose and/or formulate plans or proposals with respect thereto. |
| (a) | (a) - (b) Based upon the Issuer's definitive proxy statement, filed with the SEC on June 9, 2026, there were 488,846,722 Common Shares issued and outstanding as of June 5, 2026. Common Shares are beneficially owned by Valence, Cogence, and certain funds under the management of DESIM, including Common Shares in the name of DSIF. Each of Valence, Cogence, DESIM, and DSIF is a Delaware limited liability company and has its business address and principal office at Two Manhattan West, 375 Ninth Avenue, 52nd Floor, New York, NY 10001.
The 43,915,249 Common Shares beneficially owned by Valence (the "Valence Shares") represent
approximately 9.0% of the outstanding Common Shares. The 2,180,615 Shares beneficially owned
by Cogence (the "Cogence Shares") represent approximately 0.4% of the outstanding Common
Shares. The 389,431 Common Shares under the management of DESIM (the "DESIM Shares"),
including the 1,200 Shares beneficially owned by DSIF (the "DSIF Shares"), represent
approximately 0.1% of the outstanding Common Shares.
Valence has the power to vote or direct the vote of (and the power to dispose or direct the disposition of) the Valence Shares. Cogence has the power to vote or direct the vote of (and the power to dispose or direct the disposition of) the Cogence Shares. DESIM has the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the DESIM Shares.
DESCO LP, as the investment adviser of Valence, Cogence, and as the managing member of DESIM, which in turn is the investment adviser of DSIF, may be deemed to have the shared power to vote or direct the vote of, and the shared power to dispose or direct the disposition of 46,485,295 Common Shares.
DESCO LLC, as the manager of Valence, Cogence, and DSIF may be deemed to have the shared power to vote or direct the vote of, and the shared power to dispose or direct the disposition of 46,097,064 Common Shares.
As general partner of DESCO LP, DESCO Inc. may be deemed to have the shared power to vote or direct the vote of, and the shared power to dispose or direct the disposition of 46,485,295 Common Shares.
As managing member of DESCO LLC, DESCO II, Inc. may be deemed to have the shared power to vote or direct the vote of, and the shared power to dispose or direct the disposition of 46,097,064 Common Shares.
None of DESCO LP, DESCO LLC, DESCO Inc., or DESCO II, Inc., owns any Common Shares
directly, and each such entity disclaims beneficial ownership of any Common Shares.
Dr. Shaw does not own any Common Shares directly. By virtue of Dr. Shaw's position as President
and sole shareholder of DESCO Inc., which is the general partner of DESCO LP, which in turn is
the investment adviser of Valence, Cogence, and as the managing member of DESIM, which in
turn is the investment adviser of DSIF, and by virtue of Dr. Shaw's position as President and sole
shareholder of DESCO II, Inc., which is the managing member of DESCO LLC, which in turn is the
manager of Valence, Cogence, and DSIF, Dr. Shaw may be deemed to have the shared power to
vote or direct the vote of, and the shared power to dispose or direct the disposition of, the
46,485,295 Common Shares as described above constituting 9.5% of the outstanding Common
Shares, and, therefore, Dr. Shaw may be deemed to be the beneficial owner of such Common
Shares. David E. Shaw disclaims beneficial ownership of any Common Shares. |
