The following constitutes Amendment No. 1 (“Amendment No. 1”) to the Schedule 13D filed by the undersigned. This Amendment No. 1 amends the Schedule 13D as specifically set forth.
| Item 3. | Source and Amount of Funds or Other Consideration. |
Item 3 is hereby amended and restated to read as follows:
The aggregate purchase price of the 329,738 Shares owned directly by Lion Fund II is approximately $7,776,435, including brokerage commissions. Such Shares were acquired with the working capital of Lion Fund II.
Lion Fund II effects purchases of securities primarily through margin accounts maintained for it with prime brokers, which may extend margin credit to it as and when required to open or carry positions in the margin accounts, subject to applicable federal margin regulations, stock exchange rules and the prime brokers’ credit policies.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following:
On June 8, 2016, Lion Fund II delivered a letter to the Issuer demanding production of certain of the Issuer’s books and records (the “Demand Letter”) pursuant to Section 220 of the Delaware General Corporation Law. In the Demand Letter, Lion Fund II stated that it has concerns regarding potential mismanagement in connection with certain decisions made and transactions entered into by the Issuer at the direction and under the supervision of (i) the Board of Directors of the Issuer (the “Board”), (ii) committees of the Board, including the Corporate Opportunity Committee and the Capital Allocation Committee, and (iii) Nicholas J. Swenson, in his capacity as Chairman of the Board, President, Chief Executive Officer and Chairman of the Issuer’s Capital Allocation Committee, i.e., the allocation of the Issuer’s capital resources to investments, acquisitions and other transactions. In related matters, Lion Fund II also stated that it has concerns regarding the involvement of the members of the Corporate Opportunity Committee of the Issuer and Mr. Swenson (and his affiliates), and whether any potential improper relationships or actions, conflicts of interest, materially inadequate disclosure, reporting violations, and breach of fiduciary duty has occurred by members of the Board relating to the foregoing matters.
In the Demand Letter, Lion Fund II stated that the purpose of the Demand Letter is to allow Lion Fund II to (i) examine the extent of any potential mismanagement, wrongdoing or waste at the Issuer and any potential claims for breach of fiduciary duty relating thereto, (ii) make an independent determination as to the existence and extent of any improper relationship or actions, materially inadequate disclosure, reporting violations, or breach of fiduciary duty by any members of the Board and (iii) evaluate the independence of the directors designated as such in the Issuer’s public filings, including the independence of the members of the Corporate Opportunity Committee.
| Item 5. | Interest in Securities of the Issuer. |
Items 5(a-c) is hereby amended and restated to read as follows:
(a - c) The aggregate percentage of Shares reported owned by the Reporting Persons is based upon 2,372,527 Shares outstanding, which is the total number of Shares outstanding as of January 29, 2016, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on February 5, 2016.
As of the close of business on June 7, 2016, Lion Fund II owned directly 329,738 Shares, constituting approximately 13.9% of the Shares outstanding. By virtue of their relationships with Lion Fund II discussed in further detail in Item 2, each of BCC and Sardar Biglari may be deemed to beneficially own the Shares owned by Lion Fund II.
By virtue of his relationships with the other Reporting Persons discussed in further detail in Item 2, Sardar Biglari may be deemed to have the sole power to vote and dispose of the Shares owned directly by Lion Fund II.
Schedule A annexed hereto lists all transactions in securities of the Issuer by the Reporting Persons during the past 60 days. All of such transactions were effected in the open market, unless otherwise noted.
The filing of this Schedule 13D shall not be deemed an admission that any of the Reporting Persons is, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owner of any Shares he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the Shares reported herein that he or it does not directly own.
SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
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| | | (Date) |
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| | THE LION FUND II, L.P. |
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| | By: BIGLARI CAPITAL CORP., its General Partner |
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| | By: | |
| | | Name: | Sardar Biglari |
| | | Title: | Chairman and Chief Executive Officer |
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| | | |
| | | BIGLARI CAPITAL CORP. |
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| | | By: | |
| | | | Name: | Sardar Biglari |
| | | | Title: | Chairman and Chief Executive Officer |
| | | | |
| | | | |
| | | | |
| | | | SARDAR BIGLARI |
SCHEDULE A
Transactions in the Shares During the Past Sixty Days
Shares of Common Stock Purchased/(Sold) | Price Per Share($) | Date of Purchase / Sale |
THE LION FUND II, L.P.
| (500) | 25.00 | 04/12/2016 |
| (360) | 26.04* | 05/05/2016 |
| (550) | 25.87* | 05/09/2016 |
| (1,864) | 25.43* | 05/10/2016 |
| (800) | 25.51* | 05/31/2016 |
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* The price reported is a weighted average price. These shares were purchased in multiple transactions at prices ranging from $26.00 to $26.25, $25.50 to $26.25, $25.41 to $25.53, and $25.50 to $25.53, respectively. The Reporting Persons undertake to provide to the Issuer, any security holder of the Issuer or the staff of the Securities and Exchange Commission, upon request, full information regarding the number of shares purchased at each separate price within the ranges set forth herein.
