Page 11 of 13 SEC Filing
(b) Raging Capital and William C. Martin may be deemed to share the power to vote and dispose of the Shares held by Raging Master.
Kenneth H. Traub has the sole power to vote and dispose of 18,888 Shares directly owned by him and has the sole power to vote the 18,667 unvested restricted Shares directly owned by him.
Allan J. Young has the sole power to vote the 18,667 unvested restricted Shares directly owned by him.
(c) The Reporting Persons have not entered into any transactions in the Shares during the past 60 days.
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
| | Item 6 is hereby amended to add the following: |
On February 25, 2016, the Reporting Persons entered into a Joint Filing and Solicitation Agreement pursuant to which, among other things, (i) the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Issuer, (ii) the Reporting Persons agreed to solicit proxies or written consents for the election of the Nominees to the Board at the Annual Meeting (the “Solicitation”), and (iii) Raging Capital and its affiliates agreed to bear all expenses incurred in connection with the Solicitation. The Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
On February 25, 2016, Raging Master entered into letter agreements pursuant to which it and its affiliates agreed to indemnify each of the Nominees against claims arising from the Solicitation and any related transactions. A form of the indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
On February 25, 2016, Raging Capital entered into a compensation letter agreement with Mr. Burger pursuant to which it agreed to pay him (i) $10,000 in cash upon the submission of the Nomination Letter and (ii) $10,000 in cash upon the filing of a definitive proxy statement by Raging Master with the SEC relating to the solicitation of proxies in favor of Mr. Burger’s election as a director at the Annual Meeting. Pursuant to the compensation letter agreement, Mr. Burger has agreed to use such compensation to acquire securities of the Issuer (the “Nominee Shares”) as set forth therein. If elected or appointed to serve as a director of the Issuer, Mr. Burger has agreed not to sell, transfer or otherwise dispose of any Nominee Shares within two (2) years of his election or appointment as a director; provided, however, in the event that the Issuer enters into any merger, consolidation, business combination, sale of substantially all its assets or similar transaction with or involving a third party (a “Liquidity Event”), Mr. Burger may sell, transfer or exchange the Nominee Shares in accordance with the terms of such Liquidity Event. The compensation letter agreement is attached hereto as Exhibit 99.3 and is incorporated herein by reference.
As of the close of business on the date hereof, Raging Master held $27,500,000 principal amount of the Issuer’s 12.75% Senior Secured Notes due December 15, 2018 and $4,200,000 principal amount of the Issuer’s 7.0% Convertible Notes due December 15, 2017.
| Item 7. | Material to be Filed as Exhibits. |
Item 7 is hereby amended to add the following exhibits:
| | 99.1 | Joint Filing and Solicitation Agreement by and among Raging Capital Master Fund, Ltd., Raging Capital Management, LLC, William C. Martin, Kenneth H. Traub, Allan J. Young, Richard N. Burger and Robert L. Lerner, dated February 25, 2016. |
| | 99.2 | Form of Indemnification Letter Agreement, dated February 25, 2016. |
| | 99.3 | Compensation Letter Agreement by and between Raging Capital Management, LLC and Richard N. Burger, dated February 25, 2016. |
| | 99.4 | Powers of Attorney. |
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