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| 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 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. Prior 10b5-1 Plan
On December 15, 2016, TCP entered into the Prior 10b5-1 Plan with Cantor. Pursuant to the Prior 10b5-1 Plan, Cantor agreed to seek to sell up to 75,000 shares of Common Stock on TCPs behalf between January 16, 2017 and August 11, 2017. Transactions under the Prior 10b5-1 Plan were subject to certain price restrictions and TCP could terminate the Prior 10b5-1 Plan at any time. Cantor sold 35,000 shares of Common Stock on TCPs behalf under the Prior 10b5-1 Plan prior to its expiration on August 11, 2017.
D. 10b5-1 Plan
On August 17, 2017, TCP entered into the 10b5-1 Plan with Cantor. Pursuant to the 10b5-1 Plan, TCP has 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 are subject to certain price restrictions and TCP may terminate the 10b5-1 Plan at any time. |
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