Amended Statement of Beneficial Ownership (sc 13d/a)
May 28 2015 - 8:12AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 4)1
Common Stock, par value $0.001 per share
(Title of Class of Securities)
JONATHAN H. GARDNER, ESQ.
KAVINOKY COOK LLP
726 Exchange Street, Suite 800
Buffalo, NY 14210
(716) 845-6000
STEVE WOLOSKY, ESQ.
OLSHAN FROME WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(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 ¨.
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.
_______________
1 The remainder of this cover page shall be filled out for a reporting person’s 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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1
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NAME OF REPORTING PERSON
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o
(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
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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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
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8
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SHARED VOTING POWER
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9
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SOLE DISPOSITIVE POWER
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10
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SHARED DISPOSITIVE POWER
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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14
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This Amendment No. 4 to the Schedule 13D (this “Amendment No. 4”) amends and supplements the 13D as specifically set forth herein.
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Item 4.
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Purpose of Transaction
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Item 4 is hereby amended to add the following:
As previously disclosed in Amendment No. 3 to the Schedule 13D, on February 23, 2015, the Reporting Person sent a letter to the Issuer proposing to acquire all of the outstanding Shares that the Reporting Person does not already own at a price of $0.78 per Share payable in cash. In light of the Issuer's underperformance, on May 27, 2015, the Reporting Person sent a revised letter to the Issuer proposing to acquire all of the outstanding Shares that the Reporting Person does not already own at a price of $0.46 per Share, subject to certain deductions for prepayment premiums and similar type expenses on any lending arrangements. The Reporting Person intends to engage in further discussions with the Issuer.
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Item 5.
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Interest in Securities of the Issuer
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Item 5(a)-(c) is hereby amended and restated to read as follows:
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(a)
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As of the date hereof, the Reporting Person may be deemed to own 6,816,136 Shares, which represents approximately 9.25% of the Issuer’s issued and outstanding stock. The percentage of Shares owned by the Reporting Person is based upon 73,690,436 Shares outstanding as of May 18, 2015, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 20, 2015.
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(b)
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The Reporting Person has the power to vote, or direct the vote of, and to dispose or direct the disposition of, the Shares beneficially owned by him. Information regarding the Reporting Person is set forth in Item 2 of the Schedule 13D and is expressly incorporated by reference herein.
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(c)
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The Reporting Person has not entered into any transactions in the Shares during the past sixty days.
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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.
Dated: May 28, 2015