-----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, ARD6+pxdcEfvBrZkRFvrepyufvD8YWbtFkw5imFLLfHKu9qWDE09cZ/I7sjQIaig 3wCiOCW544lo8DXeri+WJw== 0001019056-06-000685.txt : 20060620 0001019056-06-000685.hdr.sgml : 20060620 20060620164153 ACCESSION NUMBER: 0001019056-06-000685 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060620 DATE AS OF CHANGE: 20060620 GROUP MEMBERS: COSTA BRAVA PARTNERSHIP III L.P. GROUP MEMBERS: ROARK, REARDEN & HAMOT, LLC GROUP MEMBERS: SETH W. HAMOT SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BRADLEY PHARMACEUTICALS INC CENTRAL INDEX KEY: 0000864268 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 222581418 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43138 FILM NUMBER: 06915604 BUSINESS ADDRESS: STREET 1: 383 RTE 46 WEST CITY: FAIRFIELD STATE: NJ ZIP: 08816 BUSINESS PHONE: 9738821505 MAIL ADDRESS: STREET 1: 383 ROUTE 46 WEST CITY: FAIRFIELD STATE: NJ ZIP: 08816 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Costa Brava Partnership III LP CENTRAL INDEX KEY: 0001319959 IRS NUMBER: 043387028 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 420 BOYLSTON STREET CITY: BOSTON STATE: MA ZIP: 02116 BUSINESS PHONE: 617-595-4406 MAIL ADDRESS: STREET 1: 420 BOYLSTON STREET CITY: BOSTON STATE: MA ZIP: 02116 SC 13D/A 1 bradley_13da1.txt SCHEDULE 13D, AMEND. NO. 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (Amendment No. 1)* Bradley Pharmaceuticals, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 014576 10 3 - -------------------------------------------------------------------------------- (CUSIP Number) COPY TO: Seth W. Hamot Jeffrey R. Katz, Esq. Costa Brava Partnership III L.P. Ropes & Gray LLP 420 Boylston Street One International Place Boston, MA 02116 Boston, MA 02110 (617) 595-4400 (617) 951-7000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 14, 2006 ------------------------------------------------------- (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 ss.240.13d-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). Page 1 of 8 Pages SCHEDULE 13D - ----------------------------- ----------------------------- CUSIP No. 014576 10 3 Page 2 of 8 Pages - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON: Costa Brava Partnership III L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 04-3387028 - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 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 A Delaware limited partnership - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 1,539,300 SHARES ---------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY -0- EACH ---------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 1,539,300 WITH ---------------------------------------------- 10. SHARED DISPOSITIVE POWER -0- - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,539,300 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.1% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 2 of 8 Pages SCHEDULE 13D - ----------------------------- ----------------------------- CUSIP No. 014576 10 3 Page 3 of 8 Pages - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON: Roark, Rearden & Hamot, LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 10-0000708 - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 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 A Delaware limited liability company - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 1,539,300 SHARES ---------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY -0- EACH ---------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 1,539,300 WITH ---------------------------------------------- 10. SHARED DISPOSITIVE POWER -0- - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,539,300 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.1% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON OO - Other - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 3 of 8 Pages SCHEDULE 13D - ----------------------------- ----------------------------- CUSIP No. 014576 10 3 Page 4 of 8 Pages - ----------------------------- ----------------------------- - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON: Seth W. Hamot - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 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 A United States citizen - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER NUMBER OF 1,539,300 SHARES ---------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY -0- EACH ---------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 1,539,300 WITH ---------------------------------------------- 10. SHARED DISPOSITIVE POWER -0- - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,539,300 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.1% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON IN, HC - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 4 of 8 Pages AMENDMENT NO. 1 TO SCHEDULE 13D ------------------------------- This amendment ("Amendment No. 1") amends the Schedule 13D previously filed on May 25, 2006 by Costa Brava Partnership III L.P., Roark, Rearden and Hamot, LLC, and Seth W. Hamot with respect to the shares of common stock, $0.01 par value (the "Common Stock"), of Bradley Pharmaceuticals, Inc., a Delaware corporation (the "Issuer"). Each of Costa Brava Partnership III L.P., Roark, Rearden and Hamot, LLC, and Seth W. Hamot is referred to herein individually as a "Filer" and collectively as the "Filers." Item 4. Purpose of Transaction. ---------------------- Item 4 is hereby amended by adding the following: On June 14, 2006, the Filers met with Mr. Daniel Glassman, Chairman, President and Chief Executive Officer of the Issuer. On June 15, 2006, Ropes & Gray LLP, as counsel to and on behalf of the Filers, sent a letter to Mr. Glassman. A copy of the letter is filed as Exhibit 99.1 hereto and is incorporated herein by reference. Although the Filers have made their investment in the Issuer in the ordinary course of business and not for the purpose of changing or influencing the control of the Issuer, the Filers reserve their rights to make such plans or proposals in the future or take any other steps to enhance the value of their investment. The Filers further reserve the right to increase, decrease or eliminate their investment in the Issuer or take any other action relative thereto. Item 5. Interest in Securities of the Issuer. ------------------------------------ (a), (b) The Filers are the beneficial owners of 1,539,300 shares of Common Stock (approximately 9.1% of the shares of Common Stock outstanding as reported in the Issuer's filing on Form 10-K on May 19, 2006). The Filers have the sole power to vote and the sole power to dispose of the shares of Common Stock to which this Amendment No. 1 relates. (c) The Filers have not purchased or sold shares of Common Stock of the Issuer since their filing on Schedule 13D on May 25, 2006. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect --------------------------------------------------------------------- to Securities of the Issuer. --------------------------- As of the Filers' initial filing on Schedule 13D on May 25, 2006 and as of the date hereof, the Filers were party to the following contracts with respect to the securities of the Issuer: Page 5 of 8 Pages On May 2, 2006, the Filers wrote and sold 70 put contracts with respect to the Common Stock of the Issuer at a price of $1.15 per underlying share. Each put contract provides the holder with the option to sell 100 shares of Common Stock of the Issuer to the Filers at an exercise price of $12.50 per share. The contracts expire on November 18, 2006. On May 12, 2006, the Filers wrote and sold 311 put contracts with respect to the Common Stock of the Issuer at a price of $1.20 per underlying share. Each put contract provides the holder with the option to sell 100 shares of Common Stock of the Issuer to the Filers at an exercise price of $12.50 per share. The contracts expire on November 18, 2006. On May 12, 2006, the Filers wrote and sold 125 put contracts with respect to the Common Stock of the Issuer at a price of $0.25 underlying share. Each put contract provides the holder with the option to sell 100 shares of Common Stock of the Issuer to the Filers at an exercise price of $12.50 per share. The contracts expire on August 19, 2006. On May 12, 2006, the Filers wrote and sold 200 put contracts with respect to the Common Stock of the Issuer at a price of $2.45 underlying share. Each put contract provides the holder with the option to sell 100 shares of Common Stock of the Issuer to the Filers at an exercise price of $15.00 per share. The contracts expire on November 18, 2006. Item 7. Material to be Filed as Exhibits. -------------------------------- Exhibit A -- Agreement Regarding the Joint Filing of Schedule 13D. Exhibit 1 -- Letter to Mr. Daniel Glassman, Chairman, President and Chief Executive Officer of the Issuer. Page 6 of 8 Pages Signature --------- After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. June 20, 2006 ------------- Date COSTA BRAVA PARTNERSHIP III L.P. By: Roark, Rearden & Hamot, LLC, its General Partner By: /s/ SETH W. HAMOT -------------------------- Name: Seth W. Hamot Title: President Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) Page 7 of 8 Pages EXHIBIT INDEX ------------- Exhibit Description - ------- ----------- A Agreement Regarding the Joint Filing of Schedule 13D. 99.1 Letter to Mr. Daniel Glassman, Chairman, President and Chief Executive Officer of the Issuer. Page 8 of 8 Pages EXHIBIT A AGREEMENT REGARDING THE JOINT FILING OF SCHEDULE 13D The undersigned hereby agree as follows: (i) Each of them is individually eligible to use the Schedule 13D to which this Exhibit is attached, and such Schedule 13D is filed on behalf of each of them; and (ii) Each of them is responsible for the timely filing of such Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. Dated: June 20, 2006 COSTA BRAVA PARTNERSHIP III L.P. By: Roark, Rearden & Hamot, LLC, its General Partner By: /s/ SETH W. HAMOT ------------------------------- Seth W. Hamot President ROARK, REARDEN & HAMOT, LLC By: /s/ SETH W. HAMOT ------------------------------- Seth W. Hamot President SETH W. HAMOT By: /s/ SETH W. HAMOT ------------------------------- Seth W. Hamot EX-99.1 2 ex99_1.txt EXHIBIT 99.1 [ROPES & GRAY LETTERHEAD] June 15, 2006 Harvey J. Wolkoff (617) 951-7522 harvey.wolkoff@ropesgray.com BY FAX AND FEDERAL EXPRESS Daniel Glassman Chairman, President and CEO Bradley Pharmaceuticals, Inc. 383 Route 46 West Fairfield, NJ 07004 Re: Request for Short Postponement of Date of 2005/2006 Annual Meeting of Stockholders Dear Mr. Glassman: We are the attorneys for Costa Brava Partnership III L.P. ("Costa Brava"). On June 9, 2006, Bradley Pharmaceuticals, Inc. ("Bradley" or "the Company") filed definitive proxy materials with the Securities and Exchange Commission. The proxy statement indicates that Bradley intends to hold a Combined 2005/2006 Annual Meeting of Stockholders on July 18, 2006 ("the Annual Meeting"). This is the first notice to the Company's shareholders that Bradley intends to hold a combined 2005/2006 stockholders' meeting on this date. We respectfully submit that Bradley has violated several federal securities laws by filing the proxy statement and announcing a previously unscheduled Annual Meeting in the manner it did. Bradley's action has deprived Costa Brava, as well as all other holders of Bradley's common stock, of a meaningful opportunity to submit a slate of director nominees or comply with the Company's advance notice procedures, or to submit a shareholder proposal for inclusion in the proxy statement. Further, the Company has violated Delaware common law by purporting to empower the Class B shareholders to elect 6 of the 9 members of the Board of Directors. In light of these violations, Costa Brava requests that Bradley (1) delay the Annual Meeting for a period of at least thirty days; (2) announce, as required by the federal securities laws, a date by which Costa Brava's proposal may be submitted to the Company for inclusion in the Company's proxy materials, and (3) announce a date by which shareholders may submit notice to the Company of intent to nominate directors at the 2005/2006 Annual Meeting, as is its right as a shareholder. Daniel Glassman - 2 - June 15, 2006 1. Bradley's Actions Have Deprived Costa Brava of its Right to Nominate Its Own Slate of Directors at the Annual Meeting and Submit an Appropriate Proposal for Inclusion in the Company's Proxy Statement. As you are aware, Bradley has delayed the date of the 2005 Annual Meeting to a date more than 30 days from the one year anniversary of the date of the 2004 Annual Meeting. Further, Bradley did not issue a proxy statement in 2005, which ordinarily should have set the relevant dates pertaining to the 2006 Annual Meeting. Bradley now purports to combine the 2005 shareholders' meeting with the 2006 shareholders' meeting, to be held jointly on July 18, 2006. However, under SEC Rule 14a-5(f), the Company was required to provide advance notice in Bradley's earliest possible Form 10-Q of the dates by which a shareholder, such as Costa Brava, is required to submit proposals for inclusion in Bradley's proxy statement for the 2005/2006 Annual Meeting and proposals outside of the Rule 14a-8 process (such as nomination of directors) either calculated in accordance with Rule 14a-4(c)(1) or the Company's advance notice provision authorized under applicable state law. These dates are required to be a "reasonable time before the company begins to print and mail its proxy materials." Rule 14a-8(e) (Question 5). This was not done. In fact, as late as May 19, 2006, when the Company filed its form 10-K, it made no mention of these dates, although it must clearly have already been planning the 2005/2006 Annual Meeting. SEC Rules 14a-5(e) and 14a-8 require advance notice of the Company's intended date of printing and mailing of its proxy materials, so that shareholders have a meaningful opportunity to respond, include their own proposals, and take other appropriate action. Again, this was not done. Accordingly, the Company's proxy materials and shareholders' meeting date clearly fail to conform to the federal securities laws and have deprived the Company's shareholders of fundamental rights as shareholders. In sum, by filing its proxy statement on June 9 without disclosure of the dates required by the federal securities laws, Bradley has deprived Costa Brava - and other shareholders for that matter - of any opportunity to submit nominees for directors. 2. Bradley Has Improperly Allocated Shareholder Election Rights. As you are aware, Bradley's by-laws and Certificate of Incorporation define the voting rights of shareholders with respect to election of directors. Holders of Class B common stock, voting separately as a class, are entitled to elect a majority of the directors of the corporation. "Majority" is defined as "the sum of one plus one-half the total number of directors." Holders of common stock, voting separately as a class, elect "the remainder of the directors." Thus, the Company's by-laws are intended to ensure that Class B stockholders have the right to elect a simple majority of Bradley's Board of Directors, with the common stockholders electing the remainder. Bradley, however, has stated in Proposal One of the Definitive Proxy Statement that Class B stockholders are purportedly entitled to elect a super majority of the Directors, 6 out of 9. We respectfully submit that the Board's action in this Daniel Glassman - 3 - June 15, 2006 respect violates Delaware common law, and request that the Company submit a revised proxy statement to provide that Class B shareholders have the right to elect only a majority of the Company's Board. Accordingly, Costa Brava hereby requests that Bradley immediately announce a date by which proposals may be submitted to the Company for inclusions in the Company's proxy statement, file an amended proxy statement that includes all properly submitted Rule 14a-8 shareholder proposals, immediately announce a date by which nominees for election as directors may be submitted to the Company, and postpone the date of the 2005/2006 Annual Meeting in order to provide Costa Brava and the Company's other common shareholders sufficient time in which to prepare their own proxy statement proposing a slate of director nominees, and also to include proposals in the Company's proxy materials. We also request that the Company provide in its revised proxy materials that the Class B shareholders have the right to elect 5 of the 9 directors. We request that you notify us of the Company's intentions by no later than the close of business on Tuesday, June 20, 2006. Very truly yours, /s/ HARVEY J. WOLKOFF Harvey J. Wolkoff cc: Seth Hamot -----END PRIVACY-ENHANCED MESSAGE-----