Page 4 of 6 – SEC Filing
| In connection with the August 2017 Private Placement, the Issuer, the Fir Tree Funds and the Purchasers entered into a Registration Rights Agreement as of August 2, 2017 that is to be effective upon the closing of the August 2017 Private Placement (the “PIPE Registration Rights Agreement“). Under the PIPE Registration Rights Agreement, the Issuer agrees to use its reasonable best efforts to file a Registration Statement (“Shelf Registration Statement” as defined in the PIPE Registration Rights Agreement) with the SEC no later than sixty (60) days following the PIPE Closing Date, to be effective no later than one hundred twenty (120) days following the PIPE Closing Date. In addition, the PIPE Registration Rights Agreement provides holders of Registrable Securities (as defined in the PIPE Registration Rights Agreement) piggyback registration rights, subject to certain underwriter cutbacks and issuer blackout periods. The Issuer will pay all fees and expenses relating to the registration and disposition of the Registrable Securities in compliance with the Issuer’s obligations under the PIPE Registration Rights Agreement. | |
| In connection with the August 2017 Private Placement, the A&R Registration Rights Agreement is being amended pursuant to a First Amendment to A&R Registration Rights Agreement (the “First Amendment to A&R Registration Rights Agreement“) effective upon the PIPE Closing Date, so as to include definitions related to the August 2017 Private Placement, clarify certain clauses set forth in the A&R Registration Rights Agreement with respect to the Shelf Registration Statement as defined in the PIPE Registration Rights Agreement, and to clarify certain aspects of the relationship between the Issuer’s obligations under the A&R Registration Rights Agreement and the Issuer’s obligations under the PIPE Registration Rights Agreement. | |
| The foregoing descriptions are summaries of the Subscription Agreement, the PIPE Registration Rights Agreement and the First Amendment to A&R Registration Rights Agreement, do not purport to be complete and are qualified in their entireties by reference to the full texts thereof. The Subscription Agreement, the PIPE Registration Rights Agreement and the First Amendment to A&R Registration Rights Agreement which are referenced as Exhibit 10, Exhibit 11 and Exhibit 12 to this Schedule 13D, respectively, and which are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to the Issuer’s Current Report on Form 8-K filed with the SEC on August 3, 2017 (the “August 2017 Form 8-K“) are incorporated herein by reference. |
| Item 5. | INTEREST IN SECURITIES OF THE ISSUER |
| Item 5 of the Schedule 13D is hereby amended and restated, as follows: | |
| (a) | See rows (11) and (13) of the cover pages to this Schedule 13D for the aggregate number of shares of Common Stock and percentages of the shares of Common Stock beneficially owned by the Reporting Person (see also the Proxy Right described in Item 4 of Schedule 13D). The percentages used in this Schedule 13D are calculated based upon an aggregate of 74,363,796 shares of Common Stock outstanding, which is the sum of (i) 54,783,376 shares of Common Stock issued and outstanding as of August 2, 2017, as set forth in the Subscription Agreement and (ii) 19,580,420 shares of Common Stock issuable by the Issuer pursuant to the Subscription Agreement. |
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