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0001104659-10-004752.txt : 20100204
0001104659-10-004752.hdr.sgml : 20100204
20100203213625
ACCESSION NUMBER: 0001104659-10-004752
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 1
FILED AS OF DATE: 20100204
DATE AS OF CHANGE: 20100203
GROUP MEMBERS: JEFFREY L. GENDELL
GROUP MEMBERS: TONTINE ASSET ASSOCIATES, L.L.C.
GROUP MEMBERS: TONTINE CAPITAL MANAGEMENT, L.L.C.
GROUP MEMBERS: TONTINE CAPITAL OVERSEAS MASTER FUND II, L.P.
GROUP MEMBERS: TONTINE MANAGEMENT, L.L.C.
GROUP MEMBERS: TONTINE OVERSEAS ASSOCIATES, L.L.C.
GROUP MEMBERS: TONTINE PARTNERS, L.P.
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: WESTMORELAND COAL CO
CENTRAL INDEX KEY: 0000106455
STANDARD INDUSTRIAL CLASSIFICATION: BITUMINOUS COAL & LIGNITE SURFACE MINING [1221]
IRS NUMBER: 231128670
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-16137
FILM NUMBER: 10572284
BUSINESS ADDRESS:
STREET 1: 2 NORTH CASCADE AVENUE 14TH FLOOR
CITY: COLORADO SPRINGS
STATE: CO
ZIP: 80903
BUSINESS PHONE: 7194422600
MAIL ADDRESS:
STREET 1: 2 N CASCADE AVE
STREET 2: # 14THFL
CITY: COLORADO SPRINGS
STATE: CO
ZIP: 80903-1614
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: TONTINE CAPITAL PARTNERS L P
CENTRAL INDEX KEY: 0001276922
IRS NUMBER: 200376791
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: C/O TONTINE CAPITAL MANAGEMENT LLC LP
STREET 2: 55 RAILROAD AVENUE 3RD FL
CITY: GREENWICH
STATE: CT
ZIP: 06830
BUSINESS PHONE: 2037692000
MAIL ADDRESS:
STREET 1: C/O TONTINE CAPITAL MANAGEMENT LLC LP
STREET 2: 55 RAILROAD AVENUE 3RD FL
CITY: GREENWICH
STATE: CT
ZIP: 06830
SC 13D/A
1
a10-2980_7sc13da.htm
SC 13D/A
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UNITED STATES
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OMB APPROVAL
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SECURITIES AND EXCHANGE COMMISSION
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OMB Number: 3235-0145
Expires: February 28,
2009
Estimated average
burden hours per response: 14.5
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Washington, D.C. 20549
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SCHEDULE 13D
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Under the Securities Exchange Act
of 1934
(Amendment No. 10)*
Westmoreland
Coal Company
(Name of Issuer)
(Title of Class of
Securities)
(CUSIP Number)
Jeffrey
L. Gendell
55
Railroad Avenue, 1st Floor
Greenwich,
Connecticut 06830
(Name, Address and
Telephone Number of Person
Authorized to Receive Notices and Communications)
(Date of Event Which
Requires Filing of this Statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a
signed original and five copies of the schedule, including all exhibits. See
§240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be
filled out for a reporting persons initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this
cover page shall not be deemed to be filed for the purpose of Section 18
of the Securities Exchange Act of 1934 (Act) or otherwise subject to the
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes).
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Tontine Capital Partners, L.P.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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x
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
-0-
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8.
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Shared Voting Power
998,204
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9.
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Sole Dispositive Power
-0-
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10.
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Shared Dispositive Power
998,204
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person:
998,204
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
8.3%
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14.
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Type of Reporting Person
(See Instructions)
PN
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2
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Tontine Capital Management, L.L.C.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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x
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
70,000
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8.
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Shared Voting Power
998,204
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9.
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Sole Dispositive Power
70,000
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10.
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Shared Dispositive Power
998,204
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person
1,068,204
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
8.9%
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14.
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Type of Reporting Person
(See Instructions)
OO
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3
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Tontine Partners, L.P.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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x
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
-0-
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8.
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Shared Voting Power
1,380,217
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9.
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Sole Dispositive Power
-0-
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10.
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Shared Dispositive Power
1,380,217
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person:
1,380,217
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
11.5%
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14.
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Type of Reporting Person
(See Instructions)
PN
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4
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Tontine Management, L.L.C.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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x
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
-0-
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8.
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Shared Voting Power
1,380,217
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9.
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Sole Dispositive Power
-0-
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10.
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Shared Dispositive Power
1,380,217
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person:
1,380,217
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
11.5%
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14.
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Type of Reporting Person
(See Instructions)
OO
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5
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Tontine Overseas Associates, L.L.C.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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x
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
-0-
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8.
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Shared Voting Power
205,160*
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9.
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Sole Dispositive Power
-0-
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10.
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Shared Dispositive Power
205,160*
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person:
205,160*
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12.
|
Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
1.7%*
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14.
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Type of Reporting Person
(See Instructions)
IA, OO
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(*) Estimated based on the transactions
described in Item 4
6
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Tontine Capital Overseas Master Fund II, L.P.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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x
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Cayman Islands
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
-0-
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8.
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Shared Voting Power
74,170*
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9.
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Sole Dispositive Power
-0-
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10.
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Shared Dispositive Power
74,170*
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person:
74,170*
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12.
|
Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
0.6%*
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14.
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Type of Reporting Person
(See Instructions)
PN
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(*) Estimated based on the transactions
described in Item 4
7
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Tontine Asset Associates, L.L.C.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
|
x
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(b)
|
o
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3.
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SEC Use Only
|
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4.
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Source of Funds (See
Instructions)
WC
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|
|
|
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5.
|
Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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|
|
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6.
|
Citizenship or Place of Organization
Delaware
|
|
|
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
|
7.
|
Sole Voting Power
-0-
|
|
|
|
8.
|
Shared Voting Power
74,170*
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|
|
|
9.
|
Sole Dispositive Power
-0-
|
|
|
|
10.
|
Shared Dispositive Power
74,170*
|
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|
|
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11.
|
Aggregate Amount
Beneficially Owned by Each Reporting Person:
74,170*
|
|
|
|
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12.
|
Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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|
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13.
|
Percent of Class
Represented by Amount in Row (11)
0.6%*
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14.
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Type of Reporting Person
(See Instructions)
OO
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(*) Estimated based on the transactions
described in Item 4
8
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CUSIP No. 960878106
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1.
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Names of Reporting Persons. I.R.S.
Identification Nos. of above persons (entities only)
Jeffrey L. Gendell
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2.
|
Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
|
x
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(b)
|
o
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3.
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SEC Use Only
|
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4.
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Source of Funds (See
Instructions)
WC
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5.
|
Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
United States
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
|
7.
|
Sole Voting Power
549,000
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8.
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Shared Voting Power
2,727,751
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9.
|
Sole Dispositive Power
549,000
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|
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10.
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Shared Dispositive Power
2,727,751
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|
|
|
11.
|
Aggregate Amount
Beneficially Owned by Each Reporting Person
3,276,751
|
|
|
|
|
12.
|
Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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|
|
|
13.
|
Percent of Class
Represented by Amount in Row (11)
27.2%
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14.
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Type of Reporting Person
(See Instructions)
IN
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9
Item
1. Security and Issuer
This Amendment No. 10 to Schedule 13D is being filed by the Reporting Persons to further amend the Schedule 13D originally filed on March 26, 1999 (the Original Schedule 13D), and amended on July 12, 2000, September 26, 2000, January 4, 2001, January 24, 2001, December 8, 2003, May 4, 2007, March 6, 2008, November 10, 2008 and October 23, 2009 (the Original Schedule 13D, together with the amendments, the Schedule 13D) by certain of the Reporting Persons relating to the common stock, $2.50 par value per share (the Common Stock), of Westmoreland Coal Company (the Company). The Companys principal executive offices are located at 2 North Cascade Avenue, 14th Floor, Colorado Springs,
Colorado 80903.
Item
2. Identity and Background
(a) This statement is filed by:
(i) Tontine Capital
Partners, L.P., a Delaware limited partnership (TCP), with respect to the
shares of Common Stock directly owned by it;
(ii) Tontine Capital
Management, L.L.C., a Delaware limited liability company (TCM), with respect
to the shares of Common Stock directly owned by TCP and TCM;
(iii) Tontine
Partners, L.P., a Delaware limited partnership (TP), with respect to the
shares of Common Stock directly owned by it;
(iv) Tontine
Management, L.L.C., a Delaware limited liability company (TM), with respect
to the shares of Common Stock directly owned by TP;
(v) Tontine Overseas
Associates, L.L.C., a Delaware limited liability company (TOA), with respect
to the shares of Common Stock directly owned by Tontine Overseas Fund, Ltd., a
Cayman Islands exempted company (TOF);
(vi) Tontine Capital
Overseas Master Fund II, L.P. a Cayman Islands limited partnership (TCP 2)
with respect to shares of Common Stock directly owned by it;
(vii) Tontine Asset
Associates, L.L.C., a Delaware limited liability company (TAA), with respect
to the shares of Common Stock directly owned by TCP 2; and
(viii) Jeffrey L.
Gendell (Mr. Gendell) with respect to the shares of Common Stock
directly owned by each of Mr. Gendell, TCP, TP, TOF, TCM and TCP 2.
TCP, TCM, TP, TM, TOA,
TCP 2, TAA and Mr. Gendell are hereinafter sometimes collectively referred
to as the Reporting Persons. Any
disclosures herein with respect to persons other than the Reporting Persons are
made on information and belief after making inquiry to the appropriate party.
(b) The address of the principal business and principal office
of each of TCP, TCM, TP, TM, TOA, TCP 2 and TAA is 55 Railroad Avenue, 1st Floor,
Greenwich, Connecticut 06830. The
business address of Mr. Gendell is 55 Railroad Avenue, 1st Floor,
Greenwich, Connecticut 06830.
(c) The principal business of each of TCP, TP and TCP 2 is
serving as a private investment limited partnership. The principal business of TCM is serving as
the general partner of TCP. The
principal business of TM is serving as the general partner of TP. The principal business of TOA is that of an
investment advisor engaging in the purchase and sale of securities on behalf of
its clients. The principal business of
TAA is serving as the general partner of TCP 2.
Mr. Gendell serves as the managing member of TCM, TM, TOA and TAA.
(d) None of the Reporting Persons has, during the last
five years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) None of the Reporting Persons has, during the last
five years, 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) Each of TCP and TP is a limited partnership organized
under the laws of the State of Delaware.
TCP 2 is a limited partnership organized under the laws of the Cayman
Islands. Each of TCM, TM, TOA and TAA is
a limited liability company organized under the laws of the State of Delaware. Mr. Gendell
is a United States citizen.
10
Item
3. Source and Amount of
Funds or Other Consideration
Except as set forth in
Item 4, all securities of the Company owned by the Reporting Persons were
purchased with working capital and on
margin. The Reporting Persons margin
transactions are with UBS Securities LLC, on such firms usual terms and
conditions. All or part of the shares of
Common Stock directly owned by the Reporting Persons may from time to time be
pledged with one or more banking institutions or brokerage firms as collateral
for loans made by such bank(s) or brokerage firm(s) to the Reporting
Persons. Such loans bear interest at a
rate based upon the brokers call rate from time to time in effect. Such indebtedness may be refinanced with
other banks or broker dealers.
Item
4. Purpose of Transaction
Effective February
1, 2010, the Reporting Persons reallocated ownership of Common Stock among the
entities comprising the Reporting Persons (the Reallocation). When giving effect solely to the
Reallocation, the aggregate Common Stock ownership of the Reporting Persons
after the completion of the Reallocation will be the same as the aggregate
Common Stock ownership of the Reporting Persons before the Reallocation. In connection with the Reallocation, shares
of Common Stock owned by TOF (the Transferred Shares) will be deemed to have
been distributed in kind as of February 1, 2010 to certain investors holding
ownership interests in TOF, with all of the Transferred Shares then being
immediately contributed by such investors to TCP 2. The number of Transferred Shares reported in
this Amendment No. 10 as being contributed to TCP 2 is a preliminary estimate
by the Reporting Persons. The Reporting Persons expect to finalize the actual number
of Transferred Shares by the end of February 2010, and a further amendment to
this Schedule 13D will be filed when the number of Transferred Shares is
finalized. As of the date of this
Amendment No. 10, the Reporting Persons estimate the number of Transferred
Shares to be deemed distributed in kind by TOF to be 74,170 shares of Common
Stock, with all of such shares being immediately contributed to TCP 2. However, the actual number of Transferred
Shares, as ultimately determined by the Reporting Persons, may be materially
different than the estimates disclosed in this paragraph. The consideration for the Transferred Shares
contributed to TCP 2 consists of ownership interests in TCP 2 that will be
issued to such contributing TOF investors.
Also in connection with the Reallocation, certain investors holding
partnership interests in TCP and/or TP contributed such interests to TCP 2 and,
in exchange, received ownership interests in TCP 2, with TCP 2 holding, as a
result, the contributed TCP or TP partnership interests. The completion of the transactions described
in this paragraph will not change the Reporting Persons purposes in holding
shares of Common Stock as described in this Schedule 13D.
The Reporting Persons acquired the shares of Common Stock and the Notes (as defined below) for investment purposes and in the ordinary course of business. All of the Reporting Persons may dispose of securities of the Company at any time and from time to time in the open market, through dispositions in kind to parties holding an ownership interest in TCP, TP, TOF and/or TCP 2 or otherwise. In addition, TCP 2 may obtain securities of the Company through open market purchases, transfers from other Reporting Persons or otherwise.
Although the forgoi
ng represents the range of activities presently contemplated by the Reporting Persons with respect to the Company, it should be noted that the possible activities of the Reporting Persons are subject to change at any time. Accordingly, the Reporting Persons reserve the right to change their plans or intentions and to take any and all actions that they may deem to be in their best interests.
Except as set forth in the Schedule 13D, the Reporting Persons do not have any current intention, plan or proposal with respect to: (a) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any
of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (d) any change in the present Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Companys business or corporate structure; (g) changes in the Companys charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (h) causing a class of securities of the Company to be delisted from a national securities exchange, if any, or cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Company becoming eligible for termination o
f registration pursuant to Section 12(g)(4) of the Securities Act, or (j) any action similar to any of those enumerated in items (a) through (i) above.
Item
5. Interest in Securities
of the Issuer
The following disclosure of
share ownership by the Reporting Persons is as of the date of this Amendment
No. 10 to Schedule 13D.
A. Tontine Capital Partners,
L.P.
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(a)
Aggregate number of shares beneficially owned:
998,204. Percentage: 8.3%. The percentages
used herein and in the rest of Item 5 are calculated based upon
10,299,618 shares of Common Stock of the Company issued and outstanding as of
November 2, 2009, as disclosed in the Companys Quarterly Report on
Form 10-Q filed with the SEC on November 9, 2009, plus 1,725,808
shares of Common Stock which would be outstanding upon conversion of the Notes.
(b) 1. Sole power
to vote or direct vote: -0-
2. Shared power to vote
or direct vote: 998,204
3. Sole power to dispose
or direct the disposition: -0-
4. Shared power to dispose
or direct the disposition: 998,204
(c) TCP has not
engaged in any transactions in Common Stock in the last 60 days.
(d) TCM, the general
partner of TCP, has the power to direct the affairs of TCP, including decisions
respecting the receipt of dividends from, and the disposition of the proceeds
from the sale of, the shares. Mr. Gendell
is the Managing Member of TCM and in that capacity directs its operations.
(e) Not applicable.
B. Tontine Capital Management, L.L.C.
(a) Aggregate
number of shares beneficially owned: 1,068,204. Percentage: 8.9%.
(b) 1. Sole power
to vote or direct vote: 70,000
2. Shared power to vote
or direct vote: 998,204
3. Sole power to dispose
or direct the disposition: 70,000
4. Shared power to
dispose or direct the disposition: 998,204
(c) TCM has not
engaged in any transactions in Common Stock in the last 60 days.
(d) Not applicable.
(e) Not applicable.
C.
Tontine Partners, L.P.
(a) Aggregate
number of shares beneficially owned: 1,380,217. Percentage: 11.5%.
(b) 1. Sole power
to vote or direct vote: -0-
2. Shared power to vote
or direct vote: 1,380,217
3. Sole power to dispose
or direct the disposition: -0-
4. Shared power to
dispose or direct the disposition: 1,380,217
(c) TP has not
engaged in any transactions in Common Stock in the last 60 days.
(d) TM, the general
partner of TP, has the power to direct the affairs of TP, including decisions
respecting the receipt of dividends from, and the disposition of the proceeds
from the sale of, the shares. Mr. Gendell
is the Managing Member of TM and in that capacity directs its operations.
(e) Not applicable.
D.
Tontine Management, L.L.C.
(a) Aggregate
number of shares beneficially owned: 1,380,217. Percentage: 11.5%.
(b) 1. Sole power
to vote or direct vote: -0-
2. Shared power to vote
or direct vote: 1,380,217
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3. Sole power to dispose or
direct the disposition: -0-
4. Shared power to dispose
or direct the disposition: 1,380,217
(c) TM has not
engaged in any transactions in Common Stock in the last 60 days.
(d) Not applicable.
(e) Not applicable.
E.
Tontine Overseas Associates, L.L.C.
(a) Aggregate
number of shares beneficially owned: 205,160*. Percentage: 1.7%*.
(b) 1. Sole power
to vote or direct vote: -0-
2. Shared power to vote
or direct vote: 205,160*
3. Sole power to dispose
or direct the disposition: -0-
4. Shared power to dispose
or direct the disposition: 205,160*
(c) Except as
disclosed herein, TOA has not engaged in any transactions in Common Stock in
the last 60 days.
(d) Each of the
clients of TOA has the power to direct the receipt of dividends from or the proceeds
of the sale of the shares of the Company.
Mr. Gendell is the Managing Member of TOA and in that capacity
directs its operations.
(e) Not applicable.
F. Tontine Capital Overseas Master Fund II, L.P.
(a) Aggregate
number of shares beneficially owned: 74,170*. Percentage: 0.6%*.
(b) 1. Sole power
to vote or direct vote: -0-
2. Shared power to vote
or direct vote: 74,170*
3. Sole power to dispose
or direct the disposition: -0-
4. Shared power to
dispose or direct the disposition: 74,170*
(c) Except as
disclosed herein, TCP 2 has not engaged in any transactions in Common Stock.
(d) TAA, the
general partner of TCP 2, has the power to direct the affairs of TCP 2,
including decisions respecting the receipt of dividends from, and the disposition
of the proceeds from the sale of, the shares.
Mr. Gendell is the Managing Member of TAA and in that capacity
directs its operations.
(e) Not applicable.
G. Tontine
Asset Associates, L.L.C.
(a) Aggregate
number of shares beneficially owned: 74,170*. Percentage: 0.6%*.
(b) 1. Sole power
to vote or direct vote: -0-
2. Shared power to vote
or direct vote: 74,170*
3. Sole power to dispose
or direct the disposition: -0-
4. Shared power to
dispose or direct the disposition: 74,170*
(c) Except as disclosed
herein, TAA has not engaged in any transactions in Common Stock.
(d) Not applicable.
(e) Not applicable.
H. Jeffrey L.
Gendell
(a) Aggregate
number of shares beneficially owned: 3,276,751. Percentage: 27.2%.
(b) 1. Sole power
to vote or direct vote: 549,000
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2. Shared power to vote
or direct vote: 2,727,751
3. Sole power to dispose
or direct the disposition: 549,000
4. Shared power to
dispose or direct the disposition: 2,727,751
(c) Except as
disclosed herein, Mr. Gendell has not engaged in any transactions in
Common Stock in the last 60 days.
(d) Not applicable.
(e) Not applicable.
(*) Estimated based on
the transactions described in Item 4
Item
6. Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the Issuer
On March 4, 2008, TP and TCP purchased senior secured convertible promissory notes of the Company in the original principal amount of $15,000,000 (the Notes) pursuant to a Senior Secured Convertible Note Purchase Agreement dated as of March 4, 2008, by and among the Company, TCP and TP as purchasers, and Tontine Capital Associates, L.P. as collateral agent (the Note Purchase Agreement). As provided under the Note Purchase Agreement, each Note is convertible, in whole or in part, at any time, at the option of the holder up to the outstanding principal amount of the Note held by such Purchaser at the time of such conversion into a number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the principa
l amount of the Notes to be converted (including all accrued and unpaid interest) by (B) the Conversion Price (the Conversion Price will initially be $10.00 per share of Common Stock and will be subject to further adjustments from time to time). If the calculation results in the aggregate number of shares of Common Stock to be issued in connection with all such conversions to exceed 19.9% of the number of shares of Common Stock outstanding immediately prior to the execution of the Note Purchase Agreement, the principal amount of the Notes resulting in such excess amounts will not be converted into Common Stock and will instead be paid in cash by the Company to such Purchaser at the time of such conversion. The Company is required to pay interest on the Notes, which the Company may pay, at its option, (i) in cash or (ii) in kind as of the relevant interest payment date (the last day of each March, June, September and December, commencing on March 31, 2008) by increasing the principal
amount of each Note in an aggregate amount equal to the interest due on such interest payment date; provided, however, that the Company may not pay interest on the Notes in kind as of the relevant interest payment date by increasing the principal amount of each Note if this would cause the aggregate principal amount of the Notes to exceed $18,779,460. For the interest payment periods ended March 31, 2008, June 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009, September 30, 2009 and December 31, 2009, the Company elected to pay interest on the Notes in kind, increasing the aggregate principal amount to $17,258,092.
For so long as the Reporting Persons own at least 10% of the outstanding shares of Common Stock (including the shar
es issuable upon conversion of the Notes on an as-converted basis), the Reporting Persons shall have the right to designate two members of the Board who shall be reasonably acceptable to the Board and to appoint an observer to attend meetings of the Board. As of the date hereof, Tontine has not designated any individuals to serve on the Board or act as a Board observer.
Pursuant to the Note Purchase Agreement, the Company was required to amend the Amended and Restated Rights Agreement, dated as of February 7, 2003, between Company and EquiServe Trust Company, N.A., as amended, to permit TCP and its affiliates to purchase, without triggering the rights under the Rights Plan, up to 34.5% of the sum of (x) the number of shares of Common Stock issued and outstanding
at the time of such calculation, (y) the number of shares of Common Stock purchased by the Company from stockholders after March 4, 2008 and (z) the number of shares of Common Stock issuable upon conversion of the Notes which have not been converted at the time of such calculation.
Pursuant to a Registration Rights Agreement, dated as of March 4, 2008, by and among TCP, TP, TOA, TCM, Mr. Gendell and the Company (the Registration Rights Agreement), on April 14, 2009, the Company filed a registration statement on Form S-1 registering, among other things, the resale of 3,428,889 shares of Common Stock held by the Reporting Persons (the Registration Statement). The Registration Statement was declared effective on May
22, 2009. Pursuant to the Registration Rights Agreement, the Company has agreed to maintain the effectiveness of the Registration Statement until the Reporting Persons no longer hold any Registrable Securities. In addition, under the Registration Rights Agreement, the Reporting Persons have certain demand and piggyback registration rights.
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The foregoing summary of the Note Purchase Agreement and the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to Exhibits 1 and 2, which are incorporated by reference herein.
Item
7. Material to be Filed as
Exhibits
1. Note Purchase Agreement, dated March 4, 2008, by and between Tontine Partners, L.P., Tontine Capital Partners, L.P., as purchasers, Tontine Capital Associates, L.P., as collateral agent and the Company (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed March 6, 2008).
2. Registration Rights Agreement, dated March 4, 2008, by and between Tontine Capital Partners, L.P., Tontine Partners, L.P., Tontine Overseas Associates, L.L.C., Tontine Capital Mana
gement, L.L.C., Jeffrey L. Gendell and the Company
(incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed March 6, 2008).
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Signature
After reasonable inquiry
and to the best of my knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
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February 3, 2010
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Date
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/s/ Jeffrey L. Gendell
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Signature
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Jeffrey L. Gendell, individually, as managing member of Tontine Capital
Management, L.L.C., general partner of Tontine Capital Partners, L.P., as
managing member of Tontine Management, L.L.C., general partner of Tontine
Partners, L.P., and as managing member of Tontine Overseas Associates,
L.L.C., investment advisor of Tontine Overseas Fund, Ltd. and certain
separately managed accounts, and as managing member of Tontine Asset Associates,
L.L.C., the general partner of Tontine Capital Overseas Master Fund II, L.P.
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Name/Title
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