Page 8 of 18 SEC Filing
Item 4.Purpose of the Transaction
Greenlight originally acquired shares of Common Stock of the Company for investment purposes.
From January 15, 2016 to January 25, 2016, representatives of the Reporting Persons engaged in discussions with representatives of the Company’s board of directors (the “Board”), including the Chairman, and other representatives of the Company to discuss (x) the performance of the Company’s senior management team, (y) the composition of the Board and (z) future issuances of the Company’s equity and equity-linked securities.
Specifically, Greenlight has proposed that (x) the Company appoint a person designated by Greenlight to the Board (as well as to the Board’s Nominating and Corporate Governance and Finance and Investment Committees) as an independent director, and (y) the Company’s bylaws be amended to provide that, for a period of two (2) years following the date of such bylaw amendment, the Company would not be permitted to make equity issuances without a supermajority vote of the Board, except in limited circumstances. To date, no understanding has been reached between Greenlight and the Company with respect to these issues.
Greenlight intends to evaluate on an ongoing basis its investment in the Company and its options with respect to such investment. In connection with such evaluation, Greenlight may seek additional calls and meetings with members of the Board and/or senior management of the Company, or communicate publicly or privately with other stockholders or third parties to indicate Greenlight’s views on issues relating to the strategic direction undertaken by the Company and other matters of interest to stockholders generally, including management. As part of such evaluation and any such discussions, Greenlight may make recommendations, suggestions or proposals to the Company that may relate to or result in one or more of the transactions specified in clauses (a) through (j) of Item 4 of Schedule 13D, including but not limited to: changes in the strategic direction of the Company as a means of enhancing shareholder value, changes to the Board, changes to the Company’s senior management, changes to the Company’s charter or bylaws, acquisitions or dispositions of securities of the Company, changes in the Company’s capital structure or dividend policy, and the sale of material assets or another extraordinary corporate transaction, including a sale of the Company.
Depending on various factors, including the Company’s financial position and strategic direction, the outcome of the matters referenced above, actions taken by the Company’s board of directors, price levels of the Common Stock, other investment opportunities available to the Reporting Persons, conditions in the securities markets and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investments in the Company as they deem appropriate, including, without limitation, making or causing further acquisitions of securities of the Company, including Common Stock, from time to time and disposing of, or cause to be disposed, any or all of the securities of the Company, including Common Stock, held by Greenlight at any time.
Item 5.Interest in Securities of the Issuer
(a) and (b). See Items 7-11 of the cover pages and Item 2 above.
All calculations of percentages of beneficial ownership in this Item 5 and elsewhere in this Schedule 13D are based on (x) the approximately 395,236,198 shares of Common Stock issued and outstanding, calculated as the sum of (i) 316,936,198 shares of Common Stock issued and outstanding as of January 5, 2016, as reported by the Company in its Prospectus Supplement on Form 424B3 as filed with the Securities and Exchange Commission (the “SEC”) on January 16, 2016, (ii) approximately 51,900,000 shares of Common Stock, issued in connection with the Exchange Transactions described below in Item 6 and as reported by the Company in its Current Report on Form 8-K filed with the SEC on January 13, 2016 and (iii) approximately 26,400,000 shares of Common Stock, issued pursuant to the exercise of warrants issued in connection with the Second Lien Credit Facility (as defined below) as reported by the Company in its Current Report on Form 8-K filed with the SEC on January 13, 2016 plus (y), with respect to each Reporting Person, the shares of Common Stock issuable upon the exercise of warrants owned by the applicable Reporting Person, the shares of Common Stock issuable upon the conversion of the Company’s 2.00% Convertible Senior Notes due 2018 owned by the applicable Reporting Person and the shares of Common Stock issuable upon the conversion of the Company’s 5.00% Senior Secured Convertible Notes due 2018 owned by the applicable Reporting Person.
(c) During the past 60 days the Reporting Persons (i) entered into the Exchange Transactions described below in Item 6 and (ii) entered into the open market transactions listed on Schedule A hereto, which were effected through various brokerage entities on the New York Stock Exchange.
(d) Not applicable.
(e) Not applicable.
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