Page 9 of 12 – SEC Filing
businesses or assets. Without limiting the foregoing, such plans or proposals may relate to or result in one or more of the actions set forth in subparagraphs (a) – (j) of Item 4 of Schedule 13D. The Reporting Persons intend to have discussions with all or some of the following: the Issuers management, board of directors, other shareholders and/or third parties, including, potential advisers, potential acquirers and financing sources, relating to the Issuer and the plans or proposals referenced above. The Reporting Persons intend to have such discussions to enhance shareholder value. The Reporting Persons may exchange information with the Issuer and any of the above-referenced parties pursuant to appropriate confidentiality or similar agreements. The Reporting Persons may change their intention with respect to any and all matters referred to in this Item 4.
Except as set forth herein, the Reporting Persons have no present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) The aggregate number of Shares to which this Schedule 13D relates is 3,494,914. Such aggregate number of Shares represents 13.9% of the common stock of the Issuer. The percentage reported in this Schedule 13D is calculated based upon 25,065,009 shares of common stock reported to be outstanding as of August 3, 2017 in the Form 10-Q filed by the Issuer with the Securities and Exchange Commission on August 9, 2017.
(b) The Reporting Persons share the power to vote or to direct the vote and share the power to dispose or to direct the disposition of 3,494,914 Shares.
(c) As further described in the Issuers Form 8-K dated October 21, 2016, on September 28, 2016 the Bankruptcy Court entered a Findings of Fact, Conclusions of Law, and Order Confirming Debtors First Amended Joint Chapter 11 Plan of Reorganization of the Issuer and its Debtor Affiliate, which approved and confirmed the Plan. The Plan became effective on October 21, 2016. As part of the transactions contemplated by the Plan, the Fund received 3,949,914 Shares and $8,714,592.00 in cash in exchange for $90,777,000 principal amount of the Issuers 10.0% second lien senior secured notes due 2020, which were held by the Fund.
(d) No person other than the Reporting Persons is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
On October 21, 2016, the Issuer entered into a registration rights agreement (the Registration Rights Agreement) with the Fund and certain other pre-emergence creditors (collectively, the Holders). The Registration Rights Agreement provides resale registration rights for the Holders Registrable Securities (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Issuer is required to file a Shelf Registration Statement (as defined in the Registration Rights Agreement) with respect to the Registrable Securities within 90 days of emergence. The Issuer is required to maintain the effectiveness of any such registration statement until the Registrable Securities covered by the registration statement are no longer Registrable Securities. In addition, the Holders have customary demand, underwritten offering and piggyback registration rights, subject to the limitations set forth in the Registration Rights Agreement.
The foregoing description is qualified in its entirety by reference to the full text of the referenced agreement, which is filed as Exhibit No. 10.1 to the Issuers Form 8-A.
Pursuant to Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, the Reporting Persons have entered into a Joint Filing Agreement with respect to the joint filing of this statement and any amendments hereto, a copy of which is filed as Exhibit 99.1 hereto.
Other than as described in this Schedule 13D and the agreements attached hereto and incorporated herein by reference, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
| Exhibit No. |
| Description |
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| Exhibit 10.1 |
| Registration Rights Agreement dated October 21, 2016 by and among the Issuer and the Holders (incorporated by reference to Exhibit No. 10.1 to the Issuers Form 8-A). |
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| Exhibit 24.1 |
| Power of Attorney for Marc Lasry dated February 11, 2010. |
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| Exhibit 99.1 |
| Joint Filing Agreement by and among the Reporting Persons dated November 14, 2017. |
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