SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2 )*
Acucela Inc.
(Name of Issuer)
Common Stock, no par value
(Title of Class of Securities)
00510T 109
(CUSIP Number of Class of Securities)
Andrew J. Bond
Davis Wright Tremaine LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
(206) 622-3150
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
March 2, 2015
(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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 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 Rule 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 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).
| SCHEDULE 13D | ||||
| CUSIP No. 00510T 109 |
| 1 | Names of Reporting Persons
Ryo Kubota | |||||
| 2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC Use Only
| |||||
| 4 | Source of Funds
(Not Applicable) | |||||
| 5 | Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ¨
| |||||
| 6 | Citizenship or Place of Organization
Japan | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
| 7 | Sole Voting Power
10,250,654 (1) | ||||
| 8 | Shared Voting Power
7,752,425 (2) | |||||
| 9 | Sole Dispositive Power
10,250,654 (1) | |||||
| 10 | Shared Dispositive Power
-0- | |||||
| 11 | Aggregate Amount Beneficially Owned by Each Reporting Person
18,003,079 (1)(2) | |||||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares x (3)
| |||||
| 13 | Percent of Class Represented by Amount in Row (11)
50.3% (4) | |||||
| 14 | Type of Reporting Person
IN | |||||
| (1) | Includes 10,000 shares of the Issuer’s common stock issuable upon exercise of options that are exercisable within 60 days of the date of this Schedule 13D. |
| (2) | On January 28, 2015, Dr. Ryo Kubota entered into a Voting Agreement and Irrevocable Proxy (the “Voting Agreement and Proxy”) with SBI Holdings, Inc.(“SBI”) and various subsidiaries of SBI (collectively with SBI, the “SBI Entities”), who beneficially own 7,752,425 shares of the Issuer’s common stock. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Dr. Kubota that he has beneficial ownership over any of the 7,752,425 shares of the Issuer’s common stock beneficially held by the SBI Entities for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
| (3) | On February 20, 2015, Dr. Kubota entered into voting agreements with each of Hikaru Shimura, Yoichi Tsuchiya and Yoshitaka Kitao (each a “Voting Agreement” and collectively, the “Voting Agreements”), and as consequence Dr. Kubota may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151, 515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Dr. Kubota that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Kitao, Mr. Shimura or Mr. Tsuchiya for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
| (4) | Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the Securities and Exchange Commission (the “SEC”) on November 14, 2014. |
| SCHEDULE 13D | ||||
| CUSIP No. 00510T 109 |
| 1 | Names of Reporting Persons
Hikaru Shimura | |||||
| 2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC Use Only
| |||||
| 4 | Source of Funds
(Not Applicable) | |||||
| 5 | Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ¨
| |||||
| 6 | Citizenship or Place of Organization
Japan | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
| 7 | Sole Voting Power
151,515 | ||||
| 8 | Shared Voting Power
-0- | |||||
| 9 | Sole Dispositive Power
151,515 | |||||
| 10 | Shared Dispositive Power
-0- | |||||
| 11 | Aggregate Amount Beneficially Owned by Each Reporting Person
151,515 | |||||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares x (1)
| |||||
| 13 | Percent of Class Represented by Amount in Row (11)
0.4% (2) | |||||
| 14 | Type of Reporting Person
IN | |||||
| (1) | As consequence of entering a Voting Agreement with Dr. Kubota, Mr. Shimura may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151, 515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Mr. Shimura that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Kitao, Dr. Kubota or Mr. Tsuchiya for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
| (2) | Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the SEC on November 14, 2014. |
| SCHEDULE 13D | ||||
| CUSIP No. 00510T 109 |
| 1 | Names of Reporting Persons
Yoshitaka Kitao | |||||
| 2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC Use Only
| |||||
| 4 | Source of Funds
(Not Applicable) | |||||
| 5 | Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ¨
| |||||
| 6 | Citizenship or Place of Organization
Japan | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
| 7 | Sole Voting Power
204,800 | ||||
| 8 | Shared Voting Power
-0- | |||||
| 9 | Sole Dispositive Power
204,800 | |||||
| 10 | Shared Dispositive Power
-0- | |||||
| 11 | Aggregate Amount Beneficially Owned by Each Reporting Person
204,800 | |||||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares x (1)
| |||||
| 13 | Percent of Class Represented by Amount in Row (11)
0.6% (2) | |||||
| 14 | Type of Reporting Person
IN | |||||
| (1) | As consequence of entering a Voting Agreement with Dr. Kubota, Mr. Kitao may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151,515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Mr. Kitao that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Shimura, Dr. Kubota or Mr. Tsuchiya for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
| (2) | Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the SEC on November 14, 2014. |
| SCHEDULE 13D | ||||
| CUSIP No. 00510T 109 |
| 1 | Names of Reporting Persons
Yoichi Tsuchiya | |||||
| 2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
| |||||
| 3 | SEC Use Only
| |||||
| 4 | Source of Funds
(Not Applicable) | |||||
| 5 | Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ¨
| |||||
| 6 | Citizenship or Place of Organization
Japan | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
| 7 | Sole Voting Power
20,000 | ||||
| 8 | Shared Voting Power
-0- | |||||
| 9 | Sole Dispositive Power
20,000 | |||||
| 10 | Shared Dispositive Power
-0- | |||||
| 11 | Aggregate Amount Beneficially Owned by Each Reporting Person
20,000 | |||||
| 12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares x (1)
| |||||
| 13 | Percent of Class Represented by Amount in Row (11)
0.1% (2) | |||||
| 14 | Type of Reporting Person
IN | |||||
| (1) | As consequence of entering a Voting Agreement with Dr. Kubota, Mr. Tsuchiya may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151,515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Mr. Tsuchiya that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Shimura, Dr. Kubota or Mr. Kitao for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed. |
| (2) | Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the SEC on November 14, 2014. |
EXPLANATORY NOTE
The Statement on Schedule 13D originally filed by Ryo Kubota with the SEC on February 2, 2015, as amended by Amendment No. 1 filed with the SEC jointly by Dr. Kubota, Hikaru Shimura, Yoshitaka Kitao, and Yoichi Tsuchiya on February 24, 2015 (as so amended, the “Statement”), is hereby amended with respect to the items set forth below by this Amendment No. 2 (this “Amendment”).
Capitalized terms used herein and not otherwise defined have the meanings assigned to such terms in the Statement. Except as otherwise provided herein, each item of the Statement remains unchanged.
| Item 4. | Purpose of Transaction |
Item 4 of the Statement is hereby amended by adding the following:
As of March 2, 2015, the Issuer failed to call the special shareholders meeting demanded by the SBI Entities in a letter delivered to the Issuer from the SBI Entities on January 28, 2015. Under Washington State law (Revised Code of Washington 23B.07.030), the Issuer was required to give written notice of the special shareholders meeting by February 27, 2015 (i.e. within 30 days after the written demand). As a result, on March 2, 2015, Ryo Kubota and the SBI Entities commenced a lawsuit in which they seek to have the court issue an order directing the Issuer to hold a special meeting on or before April 28, 2015, and to provide its shareholders written notice of that meeting as soon as practicable.
The foregoing description of the lawsuit is not complete and is qualified in its entirety by reference to the full text of the complaint filed by Ryo Kubota and the SBI Entities (the “Complaint”), which is attached as Exhibit 7.7 to this Amendment and is incorporated herein by reference.
| Item 7. | Materials to be Filed as Exhibits |
Item 7 of the Statement is hereby amended by the addition of the following exhibit:
| Exhibit 7.7 | Complaint, dated March 2, 2015 | |
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Date: March 3, 2015
| RYO KUBOTA |
/s/ Ryo Kubota |
| Ryo Kubota |
| HIKARU SHIMURA |
*Hikaru Shimura |
| Hikaru Shimura |
| YOSHITAKA KITAO |
*Yoshitaka Kitao |
| Yoshitaka Kitao |
| YOICHI TSUCHIYA |
*Yoichi Tsuchiya |
| Yoichi Tsuchiya |
| *Ryo Kubota |
/s/ Ryo Kubota |
| By: Ryo Kubota |
| Attorney-in-Fact |
EXHIBIT INDEX
Exhibit No. | Description | |
| Exhibit 7.7 | Complaint, dated March 2, 2015 | |
