This Amendment No. 2 to Schedule 13D (“Amendment No. 2”) relates to the common stock, par value $0.01 per share (the “Common Stock”) of Pernix Therapeutics Holdings, Inc., a Maryland corporation (the “Issuer”) and amends the Schedule 13D filed by the Reporting Person on March 19, 2010 (the “Initial Statement”) and amended by Amendment No. 1 to the Initial Statement, dated July 29, 2011 (“Amendment No.1” and, together with this Amendment No. 2, the “Schedule 13D”). Except as specifically amended by this Amendment No. 2, the Initial Statement remains in full force and effect.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Items 5(a), (b) and (c) are hereby amended and restated in their entirety as follows:
(a) As of the date hereof, the Reporting Person is the beneficial owner of 7,790,046 shares representing approximately 20.99% of the aggregate Common Stock outstanding, based on 37,120,890 shares of the Issuer’s Common Stock issued and outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the SEC for the three months ended July 30, 2013. This amount includes 1,250,000 shares of Common Stock transferred to a third party for which the Reporting Person retains sole voting power until January 23, 2014.
(b) The responses of the Reporting Person to Rows (7) through (11) of the cover pages and Item 5 (a) of this Amendment No. 2 are incorporated herein by reference.
(c) As previously reported on Form 4 of the Issuer, filed July 25, 2013, on July 23, 2013, for personal investment purposes, the Reporting Person entered into the Stock Purchase Agreement, dated July 23, 2013 (the “Stock Purchase Agreement”) between the Reporting Person and SBT Investments VI, L.L.C (“SBT”), pursuant to which the Reporting Person transferred 1,250,000 shares of Common Stock (the “Subject Shares”) to SBT in exchange for 250 units of Sigmableyzer Investment Group LLC as more fully described in Exhibit 1 to this Amendment No. 2. The closing price of a share of Common Stock on the closing date of the Stock Purchase Agreement was $4.04. Under the Stock Purchase Agreement, SBT appointed the Reporting Person as SBT’s attorney-in-fact and proxy to exercise the voting rights attached to the Subject Shares on SBT’s behalf until January 23, 2014, on which date the attorney-in-fact and proxy will terminate with respect to the Reporting Person. If SBT transfers any of the Subject Shares prior to January 23, 2014, SBT will cause the transferee of such shares of Common Stock to appoint the Reporting Person as attorney-in-fact and proxy with respect to such shares on identical terms to the Reporting Person’s appointment under the Stock Purchase Agreement.
As previously reported on the Issuer’s Form 5 filed February 7, 2012 for the twelve months ended December 31, 2011 (“Form 5”), the Reporting Person created the CCC-2011-1 GRAT (the “CCC GRAT”) on August 11, 2011 for estate planning purposes. Also as previously reported on Form 5, Stacey B. Cooper, the Spouse of the Reporting Person (the “Spouse”), created the SBC 2011-1 GRAT (the “SBC GRAT”) on August 11, 2011 for estate planning purposes. Each of the CCC GRAT and the SBC GRAT was irrevocable. The Reporting Person was the “trustee” of each of the CCC GRAT and the SBC GRAT, and was granted the sole voting power and sole dispositive power over the assets of each such GRAT.
| CUSIP No. 71426V108 | SCHEDULE 13D | Page 4 of 5 Pages |
In connection with the creation and funding of each of the CCC GRAT and the SBC GRAT, the Reporting Person and the Spouse entered into a partition agreement whereby 1,271,688 shares of Common Stock owned by the Reporting Person and the Spouse as community property under the marital property laws of the State of Texas were partitioned into two equal portions of separate property, such that after the partition each of the Reporting Person and the Spouse owned 635,844 shares of Common Stock as his or her separate property under the marital property laws of the State of Texas. The Reporting Person transferred his 635,844 shares of Common Stock to the CCC GRAT on August 11, 2011. The Spouse transferred her 635,844 shares of Common Stock to the SBC GRAT on August 11, 2011.
Under the terms of the trust agreement creating the CCC GRAT, the trustee of the CCC GRAT was required to pay two annual annuities to the Reporting Person. On September 12, 2012, the trustee of the CCC GRAT transferred 245,163 shares of Common Stock to the Reporting Person in satisfaction of the first annual annuity payment. On August 12, 2013, the trustee of the CCC GRAT transferred 390,681 shares of Common Stock to the Reporting Person in Satisfaction of the second and final annuity payment. Following the satisfaction of the second annuity payment, the CCC GRAT terminated and the remaining assets of the CCC GRAT were distributed to the CCC Family Remainder Trust. The Reporting Person is the trustee of the CCC Family Remainder Trust, and has the sole voting power and sole dispositive power over the assets of such trust.
Under the terms of the trust agreement creating the SBC GRAT, the trustee of the SBC GRAT was required to pay two annual annuities to the Spouse. On September 12, 2012, the trustee of the SBC GRAT transferred 245,163 shares of Common Stock to the Spouse in satisfaction of the first annual annuity payment. On August 12, 2013, the trustee of the SBC GRAT transferred 390,681 shares of Common Stock to the Spouse in Satisfaction of the second and final annuity payment. Following the satisfaction of second annuity payment, the SBC GRAT terminated and the remaining assets of the SBC GRAT were distributed to the SBC Children’s Remainder Trust. The Reporting Person is the trustee of the SBC Children’s Remainder Trust, and has the sole voting power and sole dispositive power over the assets of such trust.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended and supplemented as follows:
Item 5(c) is hereby incorporated by reference into this Item 6.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The exhibits listed in Item 7 are amended and supplemented as follows:
| | | |
| Exhibit 1 | | Stock Purchase Agreement, dated July 23, 2013, between SBT Investments VI, L.L.C. and the Reporting Person. |
