Page 14 of 18 SEC Filing
c) Appendix B hereto (which is incorporated by reference in this Item 5 as if restated in full herein) sets forth all transactions with respect to the Common Shares effected during the past 60 days by the Reporting Persons.
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 Common Shares.
e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
As noted above, on February 26, 2016, the Issuer filed a lawsuit in the Federal District Court for the District of Columbia alleging that the Schedule 13D filed with SEC on January 13, 2016 did not contain all required information. A copy of the complaint is attached as Exhibit 99.2 to this Report. The Reporting Persons dispute that the January 13, 2016 Schedule 13D did not contain all required information. Any supplemental information provided herein in response to the Issuers complaint is provided solely to moot the Issuers claims at the outset and the provision of such information does not constitute an admission or acknowledgment that such information was required to be included in the January 13, 2016 Schedule 13D, which the Reporting Persons expressly deny.
The Raging River LP Agreement, entered into by and among Raging River, as its general partner, and Granite, Westwood, System Harbour Limited (SHL), Nathan Milikowsky, Daniel Milikowsky, Daniel Milikowsky Family Holdings, LLC (Family Holdings), Carroll Avenue Partners LLC (Carroll), Barry Holdings LLC (Barry), Jonathan Lee, Blythe Mining, RL Davenport Resources, Inc. (RLD) and Foundation Capital Management, LLC (Foundation), each as a limited partner, states that the principal objective of Raging River is to restore investor confidence in and increase shareholder returns at the Issuer through effecting changes in the Issuers board of directors. The Raging River LP Agreement states that in order to achieve this objective, Raging River will acquire Common Shares and Notes of the Issuer and carry out a concerned shareholder campaign in respect of the Issuer, which campaign may include, among other things, retaining a proxy solicitor, engaging legal counsel on behalf of the Raging River, preparing and distributing shareholder materials and pursuing legal remedies either through regulatory authorities or courts, as appropriate, and engaging in such activities incidental or ancillary thereto as determined by the RC LLC in its sole discretion. A copy of the Raging River LP Agreement has been filed herewith as Exhibit 99.2 and incorporated herein by reference. Substantially all powers to control and manage the business and affairs of Raging River (as defined herein) are vested exclusively in RC LLC (as defined herein), the general partner of Raging River. The limited partners of Raging River are passive investors who do not play a role in managing the affairs of Raging River.
The Amended and Restated Operating Agreement of Raging River Capital GP LLC, dated December 21, 2015 (the RC LLC Agreement) entered into by and among Granite, Westwood, Blythe Mining and Jonathan G. Lee Partners LLC (Lee Partners), each as members, states that RC LLCs principal objective is to act as the general partner for one or more investment vehicles, and to engage in such activities incidental or ancillary thereto. A copy of the RC LLC Agreement has been filed herewith as Exhibit 99.6 and is incorporated herein by reference.
The Amended and Restated Operating Agreement of Raging River Capital 2 LLC, dated December 18, 2015 (the RC 2 LLC Agreement) entered into by and among Granite, Westwood, Blythe Mining, Raging River, Lee Partners and Wanxiang America Corporation (WAC), each as members, states that the exclusive purposes and functions of RC 2 LLC are to use the capital contributions of the members to purchase and hold the Additional Notes, and to engage in other activities incidental thereto. WAC is exclusively a holder of the Notes and is not an owner of any Common Shares. A copy of the RC 2 LLC Agreement has been filed herewith as Exhibit 99.7 and is incorporated herein by reference.
The Subscription Agreement and Subscriber Questionnaire of RC 2 LLC, dated December 18, 2015 (the WAC Subscription Agreement), entered into between WAC and RC 2 LLC. The WAC Subscription Agreement admits WAC as a subscriber of RC 2 LLC and a states that RC 2 LLC will invest in debt of the Issuer. A form of the membership subscription agreement to the RC 2 LLC Agreement executed by WAC has been filed herewith as Exhibit 99.8 and is incorporated herein by reference.
The Subscription Agreement and Subscriber Questionnaire of Raging River, dated December 21, 2015 (the Barry Subscription Agreement), entered into between Barry and Raging River. The Barry Subscription Agreement admits Barry as a limited partner of Raging River and a states that Raging River will invest in stock and debt of the Issuer. A form of the LP subscription agreement to the Raging River LP Agreement executed by Barry has been filed herewith as Exhibit 99.9 and is incorporated herein by reference.
The Subscription Agreement and Subscriber Questionnaire of Raging River, dated December 21, 2015 (the Carroll Subscription Agreement), entered into between Carroll and Raging River. The Carroll Subscription Agreement admits Carroll as a limited partner of Raging River and a states that Raging River will invest in stock and debt of the Issuer. A form of the LP subscription agreement to the Raging River LP Agreement executed by Carroll has been filed herewith as Exhibit 99.9 and is incorporated herein by reference.
The Subscription Agreement and Subscriber Questionnaire of Raging River, dated December 21, 2015 (the D.M. Subscription Agreement), entered into between Daniel Milikowsky and Raging River. The D.M. Subscription Agreement admits Daniel Milikowsky as a limited partner of Raging River and a states that Raging River will invest in stock and debt of the Issuer. A form of the LP subscription agreement to the Raging River LP Agreement executed by Daniel Milikowsky has been filed herewith as Exhibit 99.9 and is incorporated herein by reference.
The Subscription Agreement and Subscriber Questionnaire of Raging River, dated December 21, 2015 (the Family Holdings
14
