Page 12 of 14 – SEC Filing
F. Jeffrey L. Gendell
(a) Aggregate number of shares beneficially owned: 821,439. Percentage: 4.9%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 821,439
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition: 821,439
(c) Mr. Gendell has not engaged in any transactions in Common Stock in the last 60 days. Cantor has sold a total of 75,000 shares of Common Stock on TCPs behalf pursuant to the 10b5-1 Plan in the last 60 days. Please see the table in Item 4 for a description of such transactions.
(d) Not applicable.
(e) Not applicable.
As a result of the transactions reported herein, the Reporting Persons ceased to beneficially own more than five percent (5%) of the outstanding Common Stock of the Issuer on October 26, 2017. The filing of this Amendment No. 39 represents the final amendment to the Schedule 13D and constitutes an exit filing for the Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
A. Initial Securities Purchase Agreement
On April 10, 2007, TCP, Tontine Capital Overseas Master Fund, L.P., a Cayman Islands limited partnership (TMF), and the Company entered into a Securities Purchase Agreement (the Initial Securities Purchase Agreement) which, among other things, provided for the purchase by TCP and TMF of shares of Common Stock and Senior Subordinated Promissory Notes of the Company. The closing of the transactions contemplated by the Initial Securities Purchase Agreement occurred on May 18, 2007. Pursuant to the Initial Securities Purchase Agreement, the Company approved the acquisition by the Reporting Persons of up to 40% of its outstanding Common Stock, on a fully diluted basis, such that the Reporting Persons would not be subject to certain restrictions set forth in the Indiana Business Corporation Law (the IBCL). The Company also agreed that it would not revoke such approval and that it will use its best efforts to ensure that any future acquisitions by TCP and TMF (up to 40% of the outstanding Common Stock on a fully diluted basis) would not be subject to anti-takeover provisions included in any of the Companys organizational documents or the laws and regulations of any governmental authority. The Initial Securities Purchase Agreement also contained standard representations and warranties that survived until the earlier of (i) three years following the closing date of the transactions contemplated by the Initial Securities Purchase Agreement and (ii) the applicable statute of limitations with respect to each representation and warranty.
B. Second Amended and Restated Registration Rights Agreement; RRA Amendment
On December 11, 2008, TCP, TMF, the Company and the holders of warrants (the Original Warrant Holders) issued pursuant to a certain Warrant Agreement, dated December 11, 2008, among the Company and the Original Warrant Holders, entered into that certain Second Amended and Restated Registration Rights Agreement (the December 2008 Registration Rights Agreement), which restated the Amended and Restated Registration Rights Agreement entered into by TCP, TMF and the Company on May 18, 2007. The Original Warrant Holders, all of whom were lenders under a Credit Agreement dated May 18, 2007, among the Company, the lenders party thereto and JP Morgan Chase Bank, N.A., as administrative agent (the Previous Credit Facility), acquired their warrants in connection with the execution of a Second Amendment and Waiver to the Previous Credit Facility on December 11, 2008. Pursuant to the December 2008 Registration Rights Agreement, the Company filed a registration statement on Form S-3 registering the resale of all of the shares of Common Stock then held by the Reporting Persons (the Tontine Registration Statement). The Tontine Registration Statement was declared effective on December 30, 2008. Pursuant to the December 2008 Registration Rights Agreement, the Company filed a registration statement on Form S-3 registering the resale of shares of Common Stock issuable to the Original Warrant Holders upon the exercise of their warrants (the Lender Registration Statement). The Lender Registration Statement was declared effective on July 29, 2009. On March 31, 2011, the Company, TCP, TMF, TCP 2 and Northcreek Mezzanine Fund I, L.P. (Northcreek) entered into an Amendment (the RRA Amendment) to the December 2008 Registration Rights Agreement primarily to include TCP 2 and Northcreek as parties to the December
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