Page 9 of 15 SEC Filing
On February 23, 2016, the Reporting Persons and the Issuer
entered into a settlement agreement (the Agreement), pursuant to which the
Issuer agreed, among other things, to add Robert Savage (the New Director) as
an independent member to the board of directors of the Issuer (the Board)
effective immediately following the filing of the Issuers Annual Report on Form
10-K. The New Director will serve as a Class III Director with a term expiring
at the 2017 annual meeting of stockholders (the 2017 Annual Meeting).
The Agreement provides that, during the Standstill Period (as
defined below), if the New Director (or any replacement director) is unable or
unwilling to serve, resigns or is removed as a director prior to the 2017 Annual
Meeting and at such time the Reporting Persons beneficially own in the aggregate
at least three percent (3.0%) of the Issuers then outstanding common stock, the
Reporting Persons will have the ability to recommend a substitute director for
the New Director who qualifies as independent pursuant to the Securities and
Exchange Commission and New York Stock Exchange listing standards. The Issuer
also agreed not to increase the size of the Board beyond seven (7) members
through the Standstill Period (as defined below) without the consent of the New
Director.
The Reporting Persons have agreed, from the date of the
Agreement until the date that is thirty (30) calendar days prior to the deadline
for the submission of stockholder nominations for the 2017 Annual Meeting (such
period, the Standstill Period), to abide by certain standstill provisions
including, among other things, acquiring greater than 9.8% of the Issuers
outstanding common stock and participating in future proxy contests.
In addition, throughout the Standstill Period, the Reporting
Persons have agreed to vote in favor of each director nominated by the Board for
election to the Board and each other matter presented to stockholders in
accordance with the Boards recommendations, except that the Reporting Persons
may vote in accordance with the recommendations of Institutional Shareholders
Services (ISS) or Glass Lewis & Co., LLC (Glass Lewis) if the
recommendation of ISS or Glass Lewis differs from the Board with respect to any
matter (other than the election of directors).
The following description of the Agreement is qualified in its
entirety by reference to the full text of the Agreement, which is attached as
Exhibit 99.1 hereto and is incorporated herein by reference.
| ITEM 5. | INTEREST IN SECURITIES OF THE ISSUER. |
Item 5 is hereby amended and restated as follows:
(a) As of the close of business on
February 24, 2016, Trilogy beneficially owned 714,952 shares of Common Stock (of
which 82,114,218 shares are currently issued and outstanding, according to
information provided by the Issuer), constituting less than 1.0% of the issued
and outstanding shares of Common Stock. As of the close of business on February
24, 2016, Levcap beneficially owned 64,433 shares of Common Stock, constituting
less than 1.0% of the issued and outstanding shares of Common Stock. As the
general partner of Trilogy, LCSL may be deemed to beneficially own the 714,952
shares of Common Stock owned by Trilogy. As the general partner of Levcap, LCSEP
may be deemed to beneficially own the 64,433 shares of Common Stock owned by
Levcap.
As of the close of business on February 24, 2016, LCS may be
deemed to beneficially own 3,666,735 shares of Common Stock, constituting
approximately 4.5% of the issued and outstanding shares of Common Stock, which
includes: (i) 714,952 shares of Common Stock beneficially owned by Trilogy, by
virtue of serving as Trilogys investment advisor, (ii) 64,433 shares of Common
Stock beneficially owned by Levcap, by virtue of serving as Levcaps investment
advisor, (iii) 584, 304 shares of Common Stock as a result of acting as
sub-investment advisor to certain investment companies, as further described in
clause (d) below, and (iv) 2,303,046 shares held in managed accounts for whom
LCS acts as investment manager.
As of the close of business on February 24, 2016, Levin may be
deemed to beneficially own 4,717,858 shares of Common Stock, constituting
approximately 5.75% of the issued and outstanding shares of Common Stock, which
includes: (i) 3,666,735 shares of Common Stock that may be deemed to be
beneficially owned by LCS, by virtue of serving as the Managing Member and Chief
Executive Officer of LCS and the managing member of each of LCSL and LCSEP, (ii)
235,324 shares of Common Stock which are held in trust accounts for the benefit
of his wife and children of which he controls, and (iii) 815,799 shares of
Common Stock which are held in managed accounts owned by various family members
of Levin, of which he has shared voting and dispositive power over.
The filing of this Schedule 13D shall not be construed as an
admission that the Reporting Persons are, for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, the beneficial owners of any of the
securities reported herein. Each of the Reporting Persons
specifically disclaims beneficial ownership of the securities reported herein
that are not directly owned by such Reporting Person, except to the extent of
their pecuniary interest therein.
