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2008 Registration Rights Agreement and to provide registration rights with respect to the shares of Common Stock issuable upon exercise of the warrants acquired by TCP 2 and Northcreek, respectively, as well as other warrants acquired by TCP 2 and Northcreek in the future, in connection with a certain Secured Senior Subordinated Note and Warrant Purchase Agreement dated March 31, 2011 (the Purchase Agreement). Pursuant to the RRA Amendment, the Company was obligated, among other things, to file a shelf registration statement prior to June 30, 2011 to register the resale of the shares of Common Stock underlying the warrants acquired by TCP 2 and Northcreek, respectively, on March 31, 2011 under the Purchase Agreement, and to use its reasonable best efforts to cause the registration statement to be declared effective no later than 60 days after filing. To satisfy this obligation, on June 8, 2011, the Company filed a registration statement on Form S-3, which was declared effective on June 23, 2011. Also as required by the RRA Amendment, on May 11, 2011, the Company filed a prospectus supplement to the Tontine Registration Statement to cover the resale of all Common Stock held by TCP 2. In addition, pursuant to the December 2008 Registration Rights Agreement, as amended by the RRA Amendment, the Company granted to TCP, TMF, TCP 2, Northcreek and the Original Warrant Holders (and their respective qualifying transferees) certain demand and piggyback registration rights in connection with shares of Common Stock held by them or acquired in the future. The registration rights granted under the December 2008 Registration Rights Agreement, as amended by the RRA Amendment, terminate with respect to TCP, TMF, TCP 2, Northcreek and the Original Warrant Holders (and any of their respective qualifying transferees) when such party no longer holds any Registrable Securities (as defined in the December 2008 Registration Rights Agreement). With the exception of certain expenses, such as underwriting discounts and commissions, the Company has agreed to pay all expenses incident to its performance of or compliance with the December 2008 Registration Rights Agreement, including the reasonable fees and expenses of counsel retained by the holders of Registrable Securities requested to be included in a registration statement.
C. 10b5-1 Plan
On August 17, 2017, TCP entered into the 10b5-1 Plan with Cantor. Pursuant to the 10b5-1 Plan, TCP directed Cantor to seek to dispose of up to 75,000 shares of Common Stock held by TCP between September 18, 2017 and May 4, 2018. Transactions under the 10b5-1 Plan were subject to certain price restrictions and TCP could terminate the 10b5-1 Plan at any time. As of October 26, 2017, Cantor had sold on TCPs behalf the maximum number of shares of Common Stock to be sold pursuant to the 10b5-1 Plan.
The foregoing summaries of the Initial Securities Purchase Agreement, the December 2008 Registration Rights Agreement, the RRA Amendment and the 10b5-1 Plan do not purport to be complete and are qualified in their entirety by reference to Exhibits 99.1 through 99.4, which are incorporated by reference herein.
Except as described in this Schedule 13D, the Reporting Persons do not have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Company, including but not limited to the transfer or voting of any of the securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
99.1. Securities Purchase Agreement dated April 10, 2007, by and among Tontine Capital Partners, L.P., Tontine Capital Overseas Master Fund, L.P. and Patrick Industries, Inc. (previously filed as Exhibit 1 to Amendment No. 1 to this Schedule 13D filed on April 18, 2007).
99.2. Second Amended and Restated Registration Rights Agreement dated December 11, 2008, by and among Tontine Capital Partners, L.P., Tontine Capital Overseas Master Fund, L.P., Patrick Industries, Inc. and JPMorgan Chase Bank, N.A., Fifth Third Bank, Bank of America, N.A., Key Bank, National Association, RBS Citizens, National Association, Associated Bank, National City Bank and 1st Source Bank (previously filed as Exhibit 3 to Amendment No. 9 to this Schedule 13D on December 11, 2008).
99.3. Amendment to Second Amended and Restated Registration Rights Agreement dated March 31, 2011, by and among Tontine Capital Partners, L.P., Tontine Capital Overseas Master Fund, L.P., Tontine Capital Overseas Master Fund II, L.P., Northcreek Mezzanine Fund I, L.P. and Patrick Industries, Inc. (previously filed as Exhibit 99.3 to Amendment No. 14 to this Schedule 13D on April 6, 2011).
99.4. Sales Plan dated August 17, 2017, between Tontine Capital Partners, L.P. and Cantor Fitzgerald & Co. (Sales prices omitted from Appendix A pursuant to a request for confidential treatment) (previously filed as Exhibit 99.5 to Amendment No. 38 to this Schedule 13D on August 25, 2017).
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