On January 18, 2023, the Court held the status conference. Following the status
conference, on January 24, 2023, the Court entered an Order, dated January 18, 2023, providing that; (i) The parties, their witnesses and counsel shall appear for a hearing on the Motion for Preliminary Injunction at 11:00 a.m. on
April 25, 2023, and if necessary at 10:00 a.m. on April 26, 2023; and (ii) Defendant (the Company) shall not hold any shareholder vote with respect to any vacancy on its Board until May 31, 2023 at the earliest.
Also at the January 18, 2023 status conference, the Court referred the parties to retired Judge Lisa Rau for mediation. The parties
submitted a request for mediation to Judge Rau on February 3, 2023, and on February 9, 2023, Judge Rau held a pre-mediation conference attended by counsel for both parties. Judge Rau continued to
work with the parties separately between February and April, and on April 12, 2023, Judge Rau conducted an additional mediation session with the parties.
On February 3, 2023, the Group delivered a letter to the Board expressing the Groups disappointment and concern regarding the lack
of engagement displayed by the Board with respect to the January 7 Term Sheet.
On March 9, 2023, the Group entered into a
mutual non-disclosure agreement with the Company to facilitate a meeting to discuss a possible negotiated transaction involving the Group and the Company, which included customary non-disclosure, non-use and standstill and mutual non-disparagement terms (the Confidentiality Agreement).
Also on March 9, 2023, the Company entered into a Securities Purchase Agreement with certain purchasers specified therein, which
automatically terminated the standstill and mutual non-disparagement provisions in the Confidentiality Agreement at such time.
On March 10, 2023, the Company announced a $125 million capital raise (the Capital Raise), which was to include
commitments of $60,725,000 from affiliates of Castle Creek Capital and $34,725,000 from an affiliate of Cohen Private Ventures, LLC (a family office run by Andrew B. Cohen). The Capital Raise was to include a combination of Common Stock, Series B
Convertible Preferred Stock, non-voting common stock, and warrants, and valued the Companys shares at $2.25 per share.
On March 16, 2023, the Company failed to file its annual report on Form 10-K for 2022. This
filing, including the required Part III information on directors which was due by 120 days after year end, has still not been made as of the date hereof.
On March 29, 2023, the Group sent a letter to the Company confirming that the standstill provision in the Confidentiality Agreement
automatically terminated on March 9, 2023. On March 30, 2023, V&E sent the Group a letter confirming the Companys understanding that the standstill provision in the Confidentiality Agreement terminated on March 9, 2023. On
April 4, 2023, the Group responded to V&E confirming that the mutual non-disparagement provision in the Confidentiality Agreement also automatically terminated. The Group and the Company have engaged
in sporadic discussions since such time, including the mediation discussed above, regarding a potential investment in the Company by the Group and associated governance rights, but the parties have not been able to agree on terms. The most recent
discussions occurred during the time between mid-April and mid-May, but again, the parties were not able to agree on terms.
On April 21, 2023, the Court entered an Order accepting the joint Stipulation and Proposed Order (the Joint Stipulation)
submitted by the Group and the Defendants in connection with the November voting rights case. The Joint Stipulation and the Order concerned only the Groups claims related to the proposed nomination of Gregory B. Braca as a director candidate.
In accordance with the Joint Stipulation requested by the Group and the Defendants, and without admissions from any party, the Order stated that: (i) the Company shall re-set the record date for not
earlier than May 15, 2023 and reopen nominations for director candidates at the Annual Meeting for a period of not less than fifteen (15) days; (ii) the Group (like any other shareholder) may make one or more nominations of director
candidate(s) for Board seats up for election at the Annual Meeting and, assuming the
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