| | (e) | During the last five years, none of the Reporting Persons has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. |
| | (f) | Silver Point is a limited partnership organized under the laws of the State of Delaware. Each of Messrs. Mulé and O’Shea is a United States citizen. |
| Item 4. | PURPOSE OF TRANSACTION |
Item 4 is hereby supplemented as follows:
On January 20, 2022, the Reporting Persons received an amount of shares for Reserved Shares for no consideration. 349,053 shares were distributed as partial resolution of the claim. Additional amounts may be received at a later date as a distribution in connection with the Plan.
On June 21, 2023, the Funds and other stockholders entered into that certain Underwriting Agreement (the “Underwriting Agreement”) with the Issuer and BofA Securities, Inc., J.P. Morgan Securities LLC and Evercore Group L.L.C. acting as the lead underwriters (the “Underwriters”), pursuant to which the stockholders have agreed to sell to the Underwriters, and the Underwriters have agreed to purchase from the stockholders an aggregate 1,300,000 Shares (the “Offering”). In connection with the Offering, the Funds have entered into an agreement (the “Lock-Up Agreement”) pursuant to which the Funds have agreed that, during the period commencing on June 21, 2023 and ending at the close of business 60 days after the date of the final prospectus related to the Offering, subject to certain exceptions, the Funds will not offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, direct or indirectly, any Shares beneficially owned, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Shares without the prior written consent of the representatives of the prospective underwriters. This summary of the Lock-up Agreement does not purport to be complete and is qualified in its entirety by reference to the Lock-up Letter, which is attached as Exhibit 3. The Offering is subject to market and other conditions, and there can be no assurance as to whether or when the Offering may be completed.
In addition, on June 20, 2023, in connection with the Offering, the Issuer entered into a repurchase agreement (the “Repurchase Agreement”) with the Silver Point Capital Fund, L.P., Silver Point Capital Offshore Master Fund, L.P. by SPCP Offshore IV, Inc. as its designated affiliate, Silver Point Distressed Opportunities Fund, L.P., Silver Point Distressed Opportunity Institutional Partners, L.P. and other stockholders participating in the Offering, pursuant to which the Issuer has agreed to repurchase $25 million of Shares at a price per Share equal to the public offering price in the Offering (the “Concurrent Repurchase”).
Other than as described above, the Reporting Persons do not have any current plan or proposal that relates to or would result in any transaction, event or action enumerated in paragraphs (a) through (j) of Item 4 of Schedule 13D.
| Item 5. | INTEREST IN SECURITIES OF THE ISSUER |
Item 5 is hereby supplemented to add the following as exhibits:
| | (a) | The responses of the Reporting Persons to rows (7) through (13) of the cover pages of this Schedule 13D are incorporated herein by reference. The Reporting Persons currently beneficially own 10,300,509 Shares, consisting of (a) 8,604,580 Shares plus (b) 1,695,929 Shares issuable upon the exercise of 23,743 shares of Preferred Stock. These amounts do not include up to 24,412 Reserved Shares, which amounts may be received at a later date as a distribution in connection with the Plan. |
As reported in the Company’s Current Report on Form 10-Q filed with the SEC on May 5, 2023, as of April 26, 2023, there were 18,531,707 shares of Common Stock and 55,000 shares of Preferred Stock issued and outstanding (which shares of Preferred Stock vote together on an as-converted basis with the Common Stock as a single class). Percent ownership calculations in this Schedule 13D are calculated by using a denominator of (a) 18,531,707 shares of the Issuer’s common stock outstanding plus (b) 1,695,929 shares of common stock issuable upon the conversion of the 23,743 shares of Preferred Stock beneficially owned by the Reporting Persons. Assuming conversion of all outstanding shares of the Issuer’s Preferred Stock, the Reporting Persons beneficially own approximately 45.9% of the outstanding voting securities of the Issuer (including in the denominator all 3,928,572 shares of common stock issuable upon the conversion of the Preferred Stock outstanding).
| | (b) | The responses of the Reporting Persons to rows (7) through (13) of the cover pages of this Schedule 13D are incorporated herein by reference. |
| Item 7. | MATERIAL TO BE FILED AS EXHIBITS |
Item 7 is hereby supplemented to add the following as exhibits:
| | |
| Exhibit 1 | | Underwriting Agreement, dated as of June 21, 2023, by and among The Mainstay Mackay High Yield Corporate Bond Fund, The Mainstay VP High Yield, Corporate Bond Portfolio, Silver Point Capital Fund, L.P., Silver Point Capital Offshore Master Fund, L.P. by SPCP Offshore IV, Inc. as its designated affiliate, Silver Point Distressed Opportunities Fund, L.P., Silver Point Distressed Opportunities Offshore Master Fund, L.P. by DOF Offshore III, Inc. as its designated affiliate, Silver Point Distressed Opportunity Institutional Partners, L.P. and Silver Point Distressed Opportunity Institutional Partners Master Fund (Offshore), L.P. by DOF IP Offshore II, Inc. as its designated affiliate, BofA Securities, Inc., J.P. Morgan Securities LLC, Evercore Group L.L.C., and Gulfport Energy Corporation. |
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| Exhibit 2 | | Form of Lock-Up Agreement, dated as of June 21, 2023, by and among The Mainstay Mackay High Yield Corporate Bond Fund, The Mainstay VP High Yield, Corporate Bond Portfolio, Silver Point Capital Fund, L.P., Silver Point Capital Offshore Master Fund, L.P. by SPCP Offshore IV, Inc. as its designated affiliate, Silver Point Distressed Opportunities Fund, L.P., Silver Point Distressed Opportunities Offshore Master Fund, L.P. by DOF Offshore III, Inc. as its designated affiliate, Silver Point Distressed Opportunity Institutional Partners, L.P. and Silver Point Distressed Opportunity Institutional Partners Master Fund (Offshore), L.P. by DOF IP Offshore II, Inc. as its designated affiliate, BofA Securities, Inc., J.P. Morgan Securities LLC, and Evercore Group. |
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| Exhibit 3 | | Repurchase agreement, dated as of June 20, 2023, by and among The Mainstay Mackay High Yield Corporate Bond Fund, The Mainstay VP High Yield, Corporate Bond Portfolio, Silver Point Capital Fund, L.P., Silver Point Capital Offshore Master Fund, L.P. by SPCP Offshore IV, Inc., its designated affiliate, Silver Point Distressed Opportunities Fund, L.P., Silver Point Distressed Opportunity Institutional Partners, L.P., B and Gulfport Energy Corporation. |
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| Exhibit 4 | | Joint Filing Agreement, dated as of June 23, 2023, by and among the Reporting Persons. |
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| Exhibit 5 | | Registration Rights Agreement dated as of May 17, 2021, by and among the Issuer and the other parties signatory hereto (incorporated herein by reference to Exhibit 10.2 of the Issuer’s Form 8-K filed with the SEC on May 17, 2021). |
