-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VGUpnDtte2MW5QfVghptp7mV6xIC2QNENz5hvBYfRHscSiS2nsRRVrGqI13MK2mt E5WNx2gyhZVf0pw/2485YQ== 0000950142-01-000198.txt : 20010410 0000950142-01-000198.hdr.sgml : 20010410 ACCESSION NUMBER: 0000950142-01-000198 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010406 GROUP MEMBERS: ANDREW M. BOAS GROUP MEMBERS: CARL MARKS MANAGEMENT CO L P /NY/ GROUP MEMBERS: CARL MARKS STRATEGIC INVESTMENTS II, L.P. GROUP MEMBERS: CARL MARKS STRATEGIC INVESTMENTS, L.P. GROUP MEMBERS: JAMES F. WILSON GROUP MEMBERS: ROBERT C. RUOCCO SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ANCHOR GLASS CONTAINER CORP /NEW CENTRAL INDEX KEY: 0001052163 STANDARD INDUSTRIAL CLASSIFICATION: GLASS CONTAINERS [3221] IRS NUMBER: 593417812 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-54231 FILM NUMBER: 1597077 BUSINESS ADDRESS: STREET 1: 1 ANCHOR PLAZA STREET 2: 4343 ANCHOR PLAZA PARKWAY CITY: TAMPA STATE: FL ZIP: 33634-7513 BUSINESS PHONE: 8138840000 MAIL ADDRESS: STREET 1: 1 ANCHOR PLAZA STREET 2: 4343 ANCHOR PLAZA PARKWAY CITY: TAMPA STATE: FL ZIP: 33634-7513 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CARL MARKS MANAGEMENT CO L P /NY/ CENTRAL INDEX KEY: 0000942826 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 133434745 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 135 E 57TH ST CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2129098400 MAIL ADDRESS: STREET 1: 135 EAST 57TH STREET CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D 1 0001.txt SCHEDULE 13D ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 ----------------------- ANCHOR GLASS CONTAINER CORPORATION (Name of Company) COMMON STOCK, PAR VALUE $0.10 PER SHARE (Title of Class of Securities) 033038209 (CUSIP Number) IRIS B. ROSKEN CARL MARKS MANAGEMENT COMPANY, L.P. 135 EAST 57TH STREET NEW YORK, NY 10022-2032 TEL. NO.: (212) 909-8400 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) ----------------------- APRIL 5, 2001 (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), 1(f) or 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-1(a) 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). ================================================================================ - ----------------------------- ------------------------------ 03308209 Page 2 of 17 - ----------------------------- ------------------------------ - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Carl Marks Strategic Investments, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 816,901 SHARES -------------------------------------------------- BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON 0 WITH -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 816,901 -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 816,901 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.94% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ------------------------------ 03308209 Page 3 of 17 - ----------------------------- ------------------------------ - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Carl Marks Strategic Investments II, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 494,076 SHARES -------------------------------------------------- BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON 0 WITH -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 494,076 -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 494,076 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.85% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ------------------------------ 03308209 Page 4 of 17 - ----------------------------- ------------------------------ - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Carl Marks Management Company, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 1,310,977 SHARES -------------------------------------------------- BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON 0 WITH -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 1,310,977 -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,977 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.72% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ----------------------------- ------------------------------ 03308209 Page 5 of 17 - ----------------------------- ------------------------------ - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Andrew M. Boas - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, PF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States Citizen - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 24,922 SHARES -------------------------------------------------- BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON 1,329,681 WITH -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 24,922 -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,329,681 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,354,603 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 39.53% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ----------------------------- ------------------------------ 03308209 Page 6 of 17 - ----------------------------- ------------------------------ - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Robert C. Ruocco - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF, PF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States Citizen - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 2,228 SHARES -------------------------------------------------- BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON 1,310,977 WITH -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 2,228 -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,310,977 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,313,205 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.76% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ----------------------------- ------------------------------ 03308209 Page 7 of 17 - ----------------------------- ------------------------------ - -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON James F. Wilson - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States Citizen - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES -------------------------------------------------- BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER REPORTING PERSON 1,310,977 WITH -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 1,310,977 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,310,977 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.72% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- - ----------------------------- ------------------------------ 03308209 Page 8 of 17 - ----------------------------- ------------------------------ ITEM 1. SECURITY AND COMPANY. The title of the class of equity securities of Anchor Glass Container Corporation, a Delaware corporation (the "Company"), to which this statement (this "Statement") relates is the Company's Common Stock, par value $0.10 per share (the "Common Stock"). The address of the principal executive office of the Company is One Anchor Plaza, 4343 Anchor Plaza Parkway, Tampa, FL 33634-7513. ITEM 2. IDENTITY AND BACKGROUND. (a) This Statement is filed by (i) Carl Marks Strategic Investments, L.P., a Delaware limited partnership (the "Partnership"), (ii) Carl Marks Strategic Investments II, L.P., a Delaware limited partnership ("Partnership II"), (iii) Carl Marks Management Company, L.P., a Delaware limited partnership and the sole general partner of each of the Partnership and Partnership II (the "General Partner"), and (iv) Andrew M. Boas ("Boas"), Robert C. Ruocco ("Ruocco") and James F. Wilson ("Wilson"), the three general partners of the General Partner (collectively, the "Reporting Persons"). The Reporting Persons may be deemed a "group" for purposes of Section 13(d) and Rule 13d-1(f) under the Act because of their relationships and neither the filing of this Schedule 13D nor anything set forth herein shall be deemed to be an admission that such a "group" exists. (b) - (c) (i) The principal business of each of the Partnership and Partnership II is investment in securities. The sole general partner of each of the Partnership and Partnership II is the General Partner. The principal business of the General Partner is investment management, including the management of the Partnership and Partnership II. The business address of each of the Partnership, Partnership II and the General Partner is 135 East 57th Street, New York, New York 10022. - ----------------------------- ------------------------------ 03308209 Page 9 of 17 - ----------------------------- ------------------------------ (ii) The principal business of each of Messrs. Boas, Ruocco and Wilson is acting as general partner of the General Partner. In addition, Boas is one of the two persons who control the Carl Marks Foundation, Inc. ("CMF"), a New York corporation, which owns shares of Common Stock and Series A Preferred Stock and warrants to purchase Common Stock ("Warrants"). Ruocco is also a director of the Company. The business address of Messrs. Boas, Ruocco and Wilson is 135 East 57th Street, New York, New York 10022. (d) During the last five years, none of the Reporting Persons and CMF has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, none of the Reporting Persons and CMF has 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) Messrs. Boas, Ruocco and Wilson are each citizens of the United States of America. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. In April 1997, the Reporting Persons purchased with their own funds 10.25% Notes (the "Notes") of the Anchor Resolution Corp. (f.k.a. Anchor Glass Container Corp., "Old Anchor"), which had filed for bankruptcy in September 1996. From May 1998 to November 1999, the Reporting Persons received distributions with respect to the Notes from the Anchor Liquidating Trust, a grantor trust governed by the laws of New York, pursuant to the terms of Old Anchor's Plan of Reorganization, effective January 30, 1998. These distributions consisted in part of Series A Common Stock, Series - ----------------------------- ------------------------------ 03308209 Page 10 of 17 - ----------------------------- ------------------------------ C Common Stock, Series A Preferred Stock, Warrants for Series A Common Stock and Warrants for Series C Common Stock. In August 1998, the Partnership purchased an additional 400 shares (the "Additional Shares") of Series A Preferred Stock with its own funds. ITEM 4. PURPOSE OF TRANSACTION. The Reporting Persons acquired the Notes and the Partnership acquired the Additional Shares for investment purposes. The Reporting Persons retain the Common and Series A Preferred Stock and the Warrants they received as distributions with respect to the Notes, and the Partnership retains the Additional Shares it purchased, primarily for investment purposes. However, the Reporting Persons have become disenchanted with the current management of the Company. Certain of the Reporting Persons have repeatedly expressed to the Company their disapproval of certain transactions entered into by the Company, the process by which decisions are made by the Company and the lack of proper documentation by the Company. On October 13, 2000, certain of the Reporting Persons were among the plaintiffs in COMAC ET AL V. GHAZNAVI ET AL, No. 18417 (Del. Ch. Filed October 13, 2000), a derivative action lawsuit filed in the Delaware Court of Chancery which alleges INTER ALIA that certain directors and officers of the Company breached their fiduciary duties to the Company and the minority shareholders, and that John J. Ghaznavi ("Ghaznavi"), the chief executive officer and chairman of the Board of Directors of the Company, and the majority shareholder and certain of its affiliated corporations, all of which are directly or indirectly controlled by Ghaznavi, engaged in improper self-dealing, were unjustly enriched at the expense of the the Company and usurped a business opportunty rightfully belonging to the Company. The Reporting Persons desire to participate more actively on the Board of Directors to influence the conduct of the Company and may ultimately take action to change the management of the Company. Pursuant to the Certificate of Designations, Preferences and Relative, Participating, Option or Other Rights, and the Qualifications, Limitations or Restrictions Thereof of the Series A 10% Cumulative Convertible Preferred Stock of the Company, as amended (the "Certificate of Designations"), if the Company does not pay dividend payments to the holders of Series A Preferred Stock equal to or greater than the payments due for twelve quarters, five directors are automatically added to the Board of Directors of the Company, bringing the total number of directors from 13 to 18. The holders of Series A Preferred Stock have the right to vote for these directors as a class. As the - ----------------------------- ------------------------------ 03308209 Page 11 of 17 - ----------------------------- ------------------------------ Company has not paid at least twelve quarterly dividend payments on the Series A Preferred Stock, the Reporting Persons have participates in the election of five additional directors. The Reporting Persons contacted other holders of Series A Preferred Stock to discuss the election of these additional directors. The Reporting Persons delivered to the Company on April 5, 2001 a consent for the election of these five additional directors, one of whom is Boas. Ruocco intends to remain a director. The Reporting Persons may be deemed to form a "group," for purposes of Section 13(d) of the Act, with other holders of Series A Preferred Stock. The Reporting Persons disclaim that a group has been formed with any other holders of Series A Preferred Stock. From time to time the Reporting Persons may acquire additional shares of Common Stock, Series A Preferred Stock or Warrants or dispose of some or all of the shares of Common Stock, Series A Preferred Stock or Warrants owned by them. The Reporting Persons continue to monitor and evaluate their investment in the Company in light of pertinent factors, including the following: (i) the Company's business, operations, assets, financial condition and prospects and (ii) market, general economic and other conditions. In light of the foregoing factors and the plans and requirements of the Reporting Persons from time to time, the Reporting Persons may determine either directly or indirectly to (i) acquire additional securities of the Company, (ii) dispose of some or all of the securities of the Company which they beneficially own, or (iii) propose a merger, consolidation, joint venture or other business combination involving the Company or its subsidiaries or divisions, a sale or purchase of assets or securities of the Company or its subsidiaries or divisions, a recapitalization, reorganization or liquidation involving the Company or its subsidiaries or divisions or other similar actions. The Reporting Persons reserve the right, either individually or in any combination among - ----------------------------- ------------------------------ 03308209 Page 12 of 17 - ----------------------------- ------------------------------ themselves or together with one or more of the other stockholders of the Company, to determine in the future to take or cause to be taken one or more of the foregoing actions. Any sale or disposition of shares of Common Stock, Series A Preferred Stock or Warrants by the Reporting Persons may be made by means of privately negotiated sales, registered offerings or other transactions or by seeking to cause the Company to effect one or more of the transactions set forth above. In addition, the Reporting Persons or their affiliates may determine to increase or decrease their interests in the Company through one or more transactions in the open market or to distribute some or all of their interests in the Company to their partners or members. Other than as described in this Statement, the Reporting Persons do not have either plans or proposals that relate to or would result in: (i) the acquisition by any person of additional securities of the Company or any of its subsidiaries or the disposition of securities of the Company or any of its subsidiaries; (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of the Company or of any of its subsidiaries; (iv) any change in the present Board of Directors or management of the Company or any of its subsidiaries, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (v) any material change in the present capitalization or dividend policy of the Company; (vi) any other material change in the Company's business or corporate structure; (vii) any changes in the Company's charter, by-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any persons; (viii) causing the Common Stock to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (ix) any class of equity securities of - ----------------------------- ------------------------------ 03308209 Page 13 of 17 - ----------------------------- ------------------------------ the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (x) any action similar to any of those enumerated above. The Reporting Persons reserve the right, either individually or in any combination among themselves or together with one or more of the other stockholders of the Company, to determine in the future to take or cause to be taken one or more of the foregoing actions. ITEM 5. INTEREST IN SECURITIES OF THE COMPANY. (a) - (b) As of the date hereof, the Partnership owns 816,901 shares of Common Stock (which includes shares of Series A Preferred Stock and Warrants owned by the Partnership), which constitutes 27.94% of the Company's issued and outstanding shares of Common Stock (assuming conversion of all of the Partnership's Series A Preferred Stock and the exercise of all of the Partnership's Warrants and based on the 2,158,755 issued and outstanding shares of Common Stock as of October 31, 2000 reported by the Company in its Form 10Q filed on November 14, 2000); has sole voting power with respect to 816,901 shares of Common Stock; and has sole dispositive power with respect to 816,901 shares of Common Stock. As of the date hereof, Partnership II owns 494,076 shares of Common Stock (which includes shares of Series A Preferred Stock and Warrants owned by Partnership II), which constitutes 18.85% of the Company's issued and outstanding shares of Common Stock (assuming conversion of all of Partnership II's Series A Preferred Stock and the exercise of all of Partnership II's Warrants); has sole voting power with respect to 494,076 of shares of Common Stock; and has sole dispositive power with respect to 494,076 shares of Common Stock. - ----------------------------- ------------------------------ 03308209 Page 14 of 17 - ----------------------------- ------------------------------ The General Partner, in its capacity as general partner of the Partnership and Partnership II, may be deemed to own beneficially 1,310,977 shares of Common Stock (which includes shares of Series A Preferred Stock and Warrants owned by the Partnership and Partnership II), which constitute approximately 38.72% of the outstanding Shares (assuming conversion of all of the Series A Preferred Stock and exercise of all of the Warrants owned by the Partnership and Partnership II); have sole voting power with respect to 1,310,977 shares of Common Stock; and have sole dispositive power with respect to 1,310,977 shares of Common Stock. Wilson, in his capacity as general partner of the General Partner, may be deemed to own beneficially 1,310,977 shares of Common Stock (which includes shares of Series A Preferred Stock and Warrants owned by the Partnership and Partnership II), which constitute approximately 38.72% of the outstanding Shares (assuming conversion of all of the Series A Preferred Stock and exercise of all of the Warrants owned by the Partnership and Partnership II); have shared voting power with respect to 1,310,977 shares of Common Stock; and have shared dispositive power with respect to 1,310,977 shares of Common Stock. Boas may be deemed to own beneficially 1,354,603 shares of Common Stock (which includes shares of Series A Preferred Stock and Warrants owned by the Partnership, Partnership II, CMF and Boas directly): 1,310,977 shares of Common Stock in his capacity as general partner of the General Partner, 18,704 shares of Common Stock in his capacity as control person of the Carl Marks Foundation, and 24,922 shares of Common Stock owned directly. These shares constitute approximately 39.53% of the outstanding Shares (assuming conversion of all of the Series A Preferred Stock and exercise of all of the Warrants owned by the Partnership, Partnership II, CMF and Boas directly). Boas may be deemed to have sole voting power with respect to 24,922 shares of Common Stock; have shared voting power with respect to 1,329,681 shares of Common Stock; have sole dispositive power with respect to 24,922 shares of Common Stock; and have shared dispositive power with respect to 1,329,681 shares of Common Stock. Ruocco may be deemed to own beneficially 1,313,205 shares of Common Stock (which includes shares of Series A Preferred Stock and Warrants owned by the Partnership, Partnership II and Ruocco directly): 1,310,977 shares of Common Stock in his capacity as general partner of the General Partner and 2,228 shares of Common Stock owned directly. These shares constitute approximately 38.76 % of the outstanding Shares (assuming conversion - ----------------------------- ------------------------------ 03308209 Page 15 of 17 - ----------------------------- ------------------------------ of all of the Series A Preferred Stock and exercise of all of the Warrants owned by the Partnership, Partnership II and Ruocco directly). Ruocco may be deemed to have sole voting power with respect to 2,228 shares of Common Stock; have shared voting power with respect to 1,310,977 shares of Common Stock; have sole dispositive power with respect to 2,228 shares of Common Stock; and have shared dispositive power with respect to 1,310,977 shares of Common Stock. This Statement does not include additional shares of Common or Series A Preferred Stock or Warrants that are held by the Anchor Liquidating Trust that the Reporting Persons may have the right to receive and may be deemed to own beneficially because the exact number of such shares and Warrants has not been determined at this time. (c) Except as set forth herein, to the knowledge of the Reporting Persons with respect to the persons named in response to paragraph (a), none of the persons named in response to paragraph (a) has effected any transactions in shares of Common Stock during the past 60 days. (d) No person other than the persons listed is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any securities owned by any member of the group. (e) Not Applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIP WITH RESPECT TO THE COMPANY. The Partnership owns $8,975,000 and Partnership II owns $3,325,000 worth of 11.25% Notes of the Company due April 1, 2005 which were purchased on the open market. - ----------------------------- ------------------------------ 03308209 Page 16 of 17 - ----------------------------- ------------------------------ ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. Exhibit 1: Certificate of Designations, incorporated by reference to the Company's Form S-1, filed with the Securities and Exchange Commission (the "Commission") on November 12, 1997 Exhibit 2: Amendment to the Certificate of Designations, incorporated by reference to the Company's Form 10, filed with the Commission on August 7, 1998 Exhibit 3: Agreement relating to the filing of joint acquisition statements as required by Rule 13d-1(k)(1) under the Act. SIGNATURES 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. CARL MARKS STRATEGIC INVESTMENTS, L.P. By: Carl Marks Management Company, L.P., its general partner By: /s/ Robert C. Ruocco ---------------------------------- Name: Robert C. Ruocco Title: General Partner CARL MARKS STRATEGIC INVESTMENTS II, L.P. By: Carl Marks Management Company, L.P., its general partner By: /s/ Robert C. Ruocco ---------------------------------- Name: Robert C. Ruocco Title: General Partner CARL MARKS MANAGEMENT COMPANY, L.P. By: /s/ Robert C. Ruocco ---------------------------------- Name: Robert C. Ruocco Title: General Partner /s/ Andrew M. Boas -------------------------------------------- ANDREW M. BOAS /s/ Robert C. Ruocco -------------------------------------------- ROBERT C. RUOCCO /s/ James F. Wilson -------------------------------------------- JAMES F. WILSON EX-99 2 0002.txt EXHIBIT 3 EXHIBIT 3 to SCHEDULE 13D JOINT ACQUISITION STATEMENT PURSUANT TO RULE 13D-(k)(1) The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned without the necessity of filing additional joint acquisition statements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him, her or it contained herein, but shall not be responsible for the completeness and accuracy of the information concerning the other entities or persons, except to the extent that he, she or it knows or has reason to believe that such information is accurate. Dated: April 5, 2001 CARL MARKS STRATEGIC INVESTMENTS, L.P. By: Carl Marks Management Company, L.P., its general partner By: /s/ Robert C. Ruocco ---------------------------------- Name: Robert C. Ruocco Title: General Partner CARL MARKS STRATEGIC INVESTMENTS II, L.P. By: Carl Marks Management Company, L.P., its general partner By: /s/ Robert C. Ruocco ---------------------------------- Name: Robert C. Ruocco Title: General Partner CARL MARKS MANAGEMENT COMPANY, L.P. By: /s/ Robert C. Ruocco ---------------------------------- Name: Robert C. Ruocco Title: General Partner /s/ Andrew M. Boas -------------------------------------------- ANDREW M. BOAS /s/ Robert C. Ruocco -------------------------------------------- ROBERT C. RUOCCO /s/ James F. Wilson -------------------------------------------- JAMES F. WILSON -----END PRIVACY-ENHANCED MESSAGE-----