Rick Miller
Bryan Cave LLP
1201 W. Peachtree St., 16th Floor
Atlanta, GA 30309
Tel: (404) 572-6600
|
Steve Wolosky
Olshan Grundman Frome Rosenzweig &
Wolosky LLP
Park Avenue Tower
65 East 55th Street
New York, NY 10022
Tel: (212) 451-2333
|
CUSIP No. 466096104
|
Page 2 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Privet Fund LP
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
521,524
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
521,524
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
521,524
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.7
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 466096104
|
Page 3 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Privet Fund Management LLC
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
547,881
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
547,881
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
547,881
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.1
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
CUSIP No. 466096104
|
Page 4 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ryan Levenson
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION United States
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
547,881
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
547,881
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
547,881
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.1
|
|||
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 466096104
|
Page 5 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ben Rosenzweig
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS PF
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION United States
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
3,029
|
||
8
|
SHARED VOTING POWER
0
|
|||
9
|
SOLE DISPOSITIVE POWER
3,029
|
|||
10
|
SHARED DISPOSITIVE POWER
0
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,029
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1
|
|||
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 466096104
|
Page 6 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JCP Investment Partnership, LP
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Texas
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
201,815
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
201,815
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
201,815
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 466096104
|
Page 7 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JCP Investment Partners, LP
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Texas
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
201,815
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
201,815
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
201,815
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 466096104
|
Page 8 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JCP Investment Holdings, LLC
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Texas
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
201,815
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
201,815
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
201,815
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
CUSIP No. 466096104
|
Page 9 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JCP Investment Management, LLC
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Texas
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
201,815
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
201,815
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
201,815
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
CUSIP No. 466096104
|
Page 10 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
James Pappas
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
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) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION United States
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
201,815
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
201,815
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
201,815
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4
|
|||
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 466096104
|
Page 11 of 19 Pages
|
|
|
|||
1
|
NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Todd Diener
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)þ
(b)o |
||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) o
|
|||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION United States
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON WITH:
|
7
|
SOLE VOTING POWER
0
|
||
8
|
SHARED VOTING POWER
0
|
|||
9
|
SOLE DISPOSITIVE POWER
0
|
|||
10
|
SHARED DISPOSITIVE POWER
0
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES þ
|
|||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0
|
|||
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 466096104
|
Page 12 of 19 Pages
|
CUSIP No. 466096104
|
Page 13 of 19 Pages
|
CUSIP No. 466096104
|
Page 14 of 19 Pages
|
CUSIP No. 466096104
|
Page 15 of 19 Pages
|
CUSIP No. 466096104
|
Page 16 of 19 Pages
|
Exhibit 99.1
|
Nomination Notice together with transmittal email.
|
Exhibit 99.2
|
Joint Filing and Solicitation Agreement.
|
CUSIP No. 466096104
|
Page 17 of 19 Pages
|
Date: February 3, 2012
|
PRIVET FUND LP
By: Privet Fund Management LLC,
Managing Partner
By: /s/ Ryan Levenson
Name: Ryan Levenson
Title: Managing Member
PRIVET FUND MANAGEMENT LLC
By: /s/ Ryan Levenson
Name: Ryan Levenson
Title: Managing Member
/s/ Ryan Levenson
Ryan Levenson
/s/ Ben Rosenzweig
Ben Rosenzweig
JCP INVESTMENT PARTNERSHIP, LP
By: JCP Investment Management, LLC
Investment Manager
By: /s/ James Pappas
Name: James Pappas
Title: Managing Member
|
CUSIP No. 466096104
|
Page 18 of 19 Pages
|
JCP INVESTMENT PARTNERS, LP
By: JCP Investment Holdings, LLC
General Partner
By: /s/ James Pappas
Name: James Pappas
Title: Managing Member
JCP INVESTMENT HOLDINGS, LLC
By: /s/ James Pappas
Name: James Pappas
Title: Managing Member
JCP INVESTMENT MANAGEMENT, LLC
By: /s/ James Pappas
Name: James Pappas
Title: Managing Member
/s/ James Pappas
James Pappas
/s/ Todd Diener
Todd Diener
|
CUSIP No. 466096104
|
Page 19 of 19 Pages
|
1.
|
Ben Rosenzweig
|
Trade Date
|
Nature of Transaction
(Purchase/Sale)
|
Number of Shares
|
Price Per Share1
|
||
11/9/2011
|
Purchase
|
340
|
$6.00
|
||
11/9/2011
|
Purchase
|
995
|
$6.00
|
||
9/27/2011
|
Purchase
|
1,694
|
$6.00
|
2.
|
JCP Investment Partnership, LP
|
Trade Date
|
Nature of Transaction (Purchase/Sale)
|
Number of Shares
|
Price Per Share1
|
||
1/31/2012
|
Purchase
|
2,700
|
$6.5996
|
||
1/20/2012
|
Purchase
|
400
|
$6.50
|
||
1/18/2012
|
Purchase
|
300
|
$6.34
|
||
1/17/2012
|
Purchase
|
332
|
$6.50
|
||
1/10/2012
|
Purchase
|
2,925
|
$6.65
|
||
1/4/2012
|
Purchase
|
400
|
$6.25
|
||
1/3/2012
|
Purchase
|
1,200
|
$6.24
|
||
12/30/2011
|
Purchase
|
1,697
|
$6.24
|
||
12/29/2011
|
Purchase
|
500
|
$6.25
|
||
12/28/2011
|
Purchase
|
2,973
|
$6.25
|
||
12/27/2011
|
Purchase
|
300
|
$6.25
|
||
12/23/2011
|
Purchase
|
8,153
|
$6.22
|
||
12/22/2011
|
Purchase
|
1,800
|
$6.21
|
||
12/13/2011
|
Purchase
|
178,135
|
$5.83
|
|
1.
|
The information regarding each of the Nominees that would be required to be disclosed in connection with a solicitation of proxies for the election of such nominees as directors pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Act”), is set forth on Schedule A hereto.
|
|
2.
|
The consents of each of the Nominees to serve as a director of the Company, if so elected, are attached on Schedule A hereto.
|
|
3.
|
Privet Fund’s name and current address is set forth above; Privet Fund’s address as it appears on the Company’s books is 50 Old Ivy Rd., Suite 150, Atlanta, GA 30342; the address of each beneficial owner described below is c/o Privet Fund at the address set forth above; and the names and addresses of the Nominees are set forth on Schedule A hereto.
|
|
4.
|
Privet Fund represents that, as of the date hereof, (i) it is the beneficial owner of 521,524 shares of Common Stock of the Company entitled to vote for the election of directors (of which one share is held of record), (ii) it does not have any rights to acquire Common Stock other than as set forth herein, (iii) it undertakes to continue to hold its shares of Common Stock through the record date for the Annual Meeting; and (iv) it intends to appear in person or by proxy at the Annual Meeting to nominate the Nominees in the event the Company does not accept the Nominees as nominees of the Board.
|
|
5.
|
Privet Fund Management LLC, as the Managing Partner of Privet Fund, may be deemed under Rules 13d-3 and 13d-5 of the Act to be the beneficial owner of 547,881 shares of Common Stock of the Company entitled to vote for the election of directors (of which no shares are held of record by Privet Fund Management LLC), including the 521,524 shares of Common Stock held by Privet Fund and 26,357 shares of Common Stock held by Privet Fund Management LLC in a separately managed account pursuant to which the account owner has delegated all voting and dispositive power to Privet Fund Management LLC.
|
|
6.
|
Ryan Levenson, as the Managing Member of Privet Fund Management LLC, may be deemed under Rules 13d-3 and 13d-5 of the Act to be the beneficial owner of 547,881 shares of Common Stock of the Company entitled to vote for the election of directors (of which no shares are held of record by Mr. Levenson), including the shares of Common Stock owned by Privet Fund Management LLC.
|
|
7.
|
In the event the Company does not accept the Nominees as nominees of the Board, Privet Fund intends to deliver a proxy statement and form of proxy to a sufficient number of holders of the Corporation’s voting shares to elect the Nominees (the “Proposed Solicitation”).
|
Very truly yours, | ||||
PRIVET FUND LP, | ||||
|
By:
|
PRIVET FUND MANAGEMENT LLC, Managing Partner of Privet Fund LP |
||
/s/ Ryan Levenson
|
||||
Ryan Levenson | ||||
Title: Managing Member |
Receipt of a copy of the foregoing letter and all attachments thereto is acknowledged.
|
|||||
J. ALEXANDER’S CORPORATION
|
|||||
By: | |||||
Name: | |||||
Title: |
cc: | Rick Miller, Bryan Cave LLP |
Eliot W. Robinson, Bryan Cave LLP |
1.
|
Nominee Information and Consents
|
|
1.1
|
Todd Diener
|
|
1.2
|
Ryan Levenson
|
|
1.3
|
James Pappas
|
|
1.4
|
Ben Rosenzweig
|
2.
|
Stock Ownership Information
|
|
2.1
|
Nominee Stock Ownership
|
|
2.2
|
Proposed Participant 2-Year Trading History
|
1.
|
Stockholder Nominee Information
|
|
1.1
|
Information Required of Todd Diener
|
|
(a)
|
Identification of Nominee.
|
|
(i)
|
Full name: Todd E. Diener
|
|
(ii)
|
Business Address: 4901 Lorraine Drive, Frisco, TX 75034
|
|
(iii)
|
Age: 54
|
|
(b)
|
Employment and Business History. Mr. Diener is currently a private investor. From 2005 until 2009, Mr. Diener was an executive officer of Brinker International, Inc. where he served as the President of Chili’s Grill & Bar and On the Border restaurants. During this time, Chili’s was one of the largest casual dining restaurant chains in the world with more than 1,200 locations in the United States and 200 international locations in 28 countries. In his role as President of Chili’s, Mr. Diener has led all aspects of the brand, including finance, P&L, marketing, operations, real estate, human resources and franchising. Prior to his role as President of Chili’s and On the Border, Mr. Diener served in the roles of Executive Vice President and Chief Operating Officer of Brinker International, Inc., where he was responsible for more than 1,500 restaurants. In these roles, Mr. Diener oversaw company-owned and franchised operations for On the Border, Macaroni Grill, Maggiano’s and Corner Bakery Café restaurants in the United States and 24 other countries. Mr. Diener worked for Chili’s and its parent company, Brinker International, Inc., for approximately 28 years. Mr. Diener graduated from the Conrad Hilton School for Hotel and Restaurant Management at the University of Houston.
|
|
(c)
|
Directorships. In the last five years, Mr. Diener has not held any directorships in any company with a class of securities registered pursuant to section 12 of the Act or subject to the requirements of section 15(d) of the Act or in any company registered as an investment company under the Investment Company Act of 1940.
|
|
(d)
|
Qualifications. Privet Fund believes that Mr. Diener’s experience, background and leadership roles, including extensive experience developing and managing companies in the restaurant industry, will allow Mr. Diener to bring valuable expertise to the Company’s Board.
|
|
(e)
|
Relationship with the Company. Mr. Diener has not previously been employed or held any other positions or offices or been party to any employment agreement, arrangements, transactions or other relationships with the Company or any parent, subsidiary or other affiliate of the Company.
|
|
(i)
|
To the best of Mr. Diener’s knowledge, he is not related by blood, marriage or adoption to any director, employee or nominee to become a director or officer of the Company.
|
|
(ii)
|
Mr. Diener is not an “interested person” under section 2(a)(19) of the Investment Company Act of 1940 and has no material relationship with the Company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the Company).
|
|
(f)
|
Stock Ownership. Mr. Diener is not, directly or indirectly, the beneficial owner (as defined in Rule 13d-3 under the Exchange Act of 1934) of any securities of the Company.
|
|
(g)
|
Financing Arrangements. No arrangements exist for the financing of Mr. Diener as a nominee for election as a director of the Company.
|
|
(h)
|
Company Legal Proceedings. There are no material pending legal proceedings to which Mr. Diener is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to the Company or any of its subsidiaries.
|
|
(i)
|
Other Legal Proceedings. During the last ten years:
|
|
(i)
|
No petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, and no receiver, fiscal agent or similar officer has been appointed by a court for, the business or property of (a) Mr. Diener, (b) any partnership in which Mr. Diener was a general partner at or within two years before the time of such filing, or (c) any corporation or business association of which Mr. Diener was an executive officer at or within two years before the time of such filing.
|
|
(ii)
|
Mr. Diener has not been convicted in a criminal proceeding or named the subject of a pending criminal proceeding, excluding traffic violations and other minor offenses.
|
|
(iii)
|
Mr. Diener has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting, the following activities:
|
|
(1)
|
acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
|
|
(2)
|
engaging in any type of business practice; or
|
|
(3)
|
engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws.
|
|
(iv)
|
Mr. Diener has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of Mr. Diener to engage in any activity described in paragraph (i)(iii)(1) of this section or to be associated with persons engaged in any such activity.
|
|
(v)
|
Mr. Diener has not been found by a court of competent jurisdiction in a civil action or by the U.S. Securities and Exchange Commission (the “Commission”) to have violated any Federal or State securities law where the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended or vacated.
|
|
(vi)
|
Mr. Diener has not been found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law where the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated.
|
|
(vii)
|
Mr. Diener has not been the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:
|
|
(1)
|
Any Federal or State securities or commodities law or regulation;
|
|
(2)
|
Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or
|
|
(3)
|
Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity.
|
|
(viii)
|
Mr. Diener has not been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
|
|
(j)
|
Compensation from Company. Neither Mr. Diener nor any associate or immediate family member has had an employment contract with or received any form of compensation, including plan and non-plan compensation, during the last three years from any person for services rendered in all capacities to the Company and its subsidiaries.
|
|
(k)
|
Nominee Interest in Matters to be Acted Upon. Mr. Diener does not have any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon, other than election as a director of the Company.
|
|
(l)
|
Arrangements Relating to the Solicitation. Mr. Diener was not selected as a nominee for director pursuant to any contract, arrangement or understanding with any person or company.
|
/s/ Todd Diener | ||
Todd Diener | ||
Date: 1/28/2012 |
1.2
|
Information Required of Ryan Levenson
|
|
(a)
|
Identification of Nominee.
|
|
(i)
|
Full name: Ryan James Levenson
|
|
(ii)
|
Business Address: 3280 Peachtree Rd., Suite 2670, Atlanta, GA 30305
|
|
(iii)
|
Age: 36
|
|
(b)
|
Employment and Business History. Mr. Levenson is currently Principal and Managing Member of Privet Fund Management LLC, an investment firm, since its founding in February 2007. Mr. Levenson also currently serves as a member of the Board of Directors and Compensation and Audit Committees of The Middleby Corporation (NASDAQ: MIDD), a commercial foodservice equipment manufacturer with a market capitalization of approximately $1.5 billion. Prior to founding Privet Fund Management LLC in February, 2007, Mr. Levenson served as Vice President of Business Development at MSI, a privately held building products distributor and construction services company since 2003. Prior to MSI, Mr. Levenson served as a financial analyst for Cramer Rosenthal McGlynn’s long/short equity hedge fund after working at SAC Capital Advisors LLC in a similar capacity. Mr. Levenson began his career as an analyst for CJS Securities. Mr. Levenson graduated from Vanderbilt University.
|
|
(c)
|
Directorships. In the last five years, except as set forth in paragraph (b) above, Mr. Levenson has not been a director of any company with a class of securities registered pursuant to section 12 of the Act or subject to the requirements of section 15(d) of the Act or in any company registered as an investment company under the Investment Company Act of 1940.
|
|
(d)
|
Qualifications. Privet Fund believes that Mr. Levenson’s significant experience, expertise and background with regard to financial matters and board-level experience will allow Mr. Levenson to bring valuable expertise to the Company’s Board.
|
|
(e)
|
Relationship with the Company. Mr. Levenson has not previously been employed or held any other positions or offices or been party to any employment agreement, arrangements, transactions or other relationships with the Company or any parent, subsidiary or other affiliate of the Company.
|
|
(i)
|
To the best of Mr. Levenson’s knowledge, he is not related by blood, marriage or adoption to any director, employee or nominee to become a director or officer of the Company.
|
|
(ii)
|
Mr. Levenson is not an “interested person” under section 2(a)(19) of the Investment Company Act of 1940 and has no material relationship with the Company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the company).
|
|
(f)
|
Stock Ownership. As of the date hereof, Mr. Levenson is not, directly or indirectly, the beneficial owner (as defined in Rule 13d-3 under the Act of 1934) of any securities of the Company, other than the 547,881 shares of Common Stock beneficially owned by Privet Fund Management LLC, which includes 521,524 shares of Common Stock owned by Privet Fund. Privet Fund Management LLC is the Managing Partner of Privet Fund, and Mr. Levenson is the Managing Member of Privet Fund Management LLC. Accordingly, Mr. Levenson may be deemed to hold shared voting and dispositive power with respect to the 26,357 shares of Common Stock owned by Privet Fund Management LLC and to be a beneficial owner of such shares.
|
|
(g)
|
Financing Arrangements. No arrangements exist for the financing of Mr. Levenson as a nominee for election as a director of the Company.
|
|
(h)
|
Company Legal Proceedings. There are no material pending legal proceedings to which Mr. Levenson is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to the Company or any of its subsidiaries.
|
|
(i)
|
Other Legal Proceedings. During the last ten years:
|
|
(i)
|
No petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, and no receiver, fiscal agent or similar officer has been appointed by a court for, the business or property of (a) Mr. Levenson, (b) any partnership in which Mr. Levenson was a general partner at or within two years before the time of such filing, or (c) any corporation or business association of which Mr. Levenson was an executive officer at or within two years before the time of such filing.
|
|
(ii)
|
Mr. Levenson has not been convicted in a criminal proceeding or named the subject of a pending criminal proceeding, excluding traffic violations and other minor offenses.
|
|
(iii)
|
Mr. Levenson has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting, the following activities:
|
|
(1)
|
acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
|
|
(2)
|
engaging in any type of business practice; or
|
|
(3)
|
engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws.
|
|
(iv)
|
Mr. Levenson has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of Mr. Levenson to engage in any activity described in paragraph (i)(iii)(1) of this section or to be associated with persons engaged in any such activity.
|
|
(v)
|
Mr. Levenson has not been found by a court of competent jurisdiction in a civil action or by the Commission to have violated any Federal or State securities law where the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended or vacated.
|
|
(vi)
|
Mr. Levenson has not been found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law where the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated.
|
|
(vii)
|
Mr. Levenson has not been the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:
|
|
Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or
|
|
Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity.
|
|
(viii)
|
Mr. Levenson has not been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
|
|
(j)
|
Compensation from Company. Neither Mr. Levenson nor any associate or immediate family member has had an employment contract with or received any form of compensation, including plan and non-plan compensation, during the last three years from any person for services rendered in any capacities to the Company and its subsidiaries.
|
|
(k)
|
Nominee Interest in Matters to be Acted Upon. Mr. Levenson does not have any substantial interest, direct or indirect, in any matter to be acted upon, other than election as a director of the Company, and except for any interest arising from the ownership of securities of the Company where Mr. Levenson receives no extra or special benefit not shared on a pro rata basis by all other holders of the same class.
|
|
(l)
|
Arrangements Relating to the Solicitation. Mr. Levenson was not selected as a nominee for director pursuant to any contract, arrangement or understanding with any person or company.
|
/s/ Ryan Levenson | ||
Ryan Levenson | ||
Date: 1/30/2012 |
1.3
|
Information Required of James Pappas
|
|
(a)
|
Identification of Nominee.
|
|
(i)
|
Full name: James Christopher Pappas
|
|
(ii)
|
Business Address: 1177 West Loop South, Suite 1650, Houston, TX 77027
|
|
(iii)
|
Age: 30
|
|
(b)
|
Employment and Business History. Mr. Pappas is currently the Managing Member of JCP Investment Management, LLC and the sole member of JCP Investment Holdings, LLC, which are firms whose principal business is investing in securities. From 2005 until 2007, Mr. Pappas worked for The Goldman Sachs Group, Inc. (NYSE: GS), a multinational investment banking and securities firm, in the Investment Banking/Leveraged Finance Division. Prior to Goldman Sachs, Mr. Pappas worked at Banc of America Securities, the investment banking arm of Bank of America (NYSE: BAC), a multinational banking and financial services corporation, where he focused on Consumer and Retail Investment Banking and provided advice on a wide range of transactions, including mergers and acquisitions, financings, restructurings and buy-side engagements. Mr. Pappas received a Bachelor of Business Administration and a Masters in Finance from Texas A&M University.
|
|
(c)
|
Directorships. In the last five years, Mr. Pappas has not held any directorships in any company with a class of securities registered pursuant to section 12 of the Act or subject to the requirements of section 15(d) of the Act or in any company registered as an investment company under the Investment Company Act of 1940.
|
|
(d)
|
Qualifications. Privet Fund believes that Mr. Pappas’s extensive knowledge of the capital markets, finance and investment as a result of his investment banking and investment management background will allow Mr. Pappas to bring valuable expertise to the Company’s Board.
|
|
(e)
|
Relationship with the Company. Mr. Pappas has not previously been employed or held any other positions or offices or been party to any employment agreement, arrangements, transactions or other relationships with the Company or any parent, subsidiary or other affiliate of the Company.
|
|
(i)
|
To the best of Mr. Pappas’s knowledge, he is not related by blood, marriage or adoption to any director, employee or nominee to become a director or officer of the Company.
|
|
(ii)
|
Mr. Pappas is not an “interested person” under section 2(a)(19) of the Investment Company Act of 1940 and has no material relationship with the Company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the Company).
|
|
(f)
|
Stock Ownership. As of the date hereof, Mr. Pappas is not, directly or indirectly, the beneficial owner (as defined in Rule 13d-3 under the Act of 1934) of any securities of the Company, other than the 201,815 shares of Common Stock owned by JCP Investment Partnership, LP. JCP Investment Partners, LP is the general partner of JCP Investment Partnership, LP; JCP Investment Holdings, LLC is the general partner of JCP Investment Partners, LP; and JCP Investment Management, LLC is the investment manager of JCP Investment Partnership, LP. Mr. Pappas is the sole member of JCP Investment Holdings, LLC and the Managing Member of JCP Investment Management, LLC. Accordingly, Mr. Pappas may be deemed to hold shared voting and dispositive power with respect to the shares owned by JCP Investment Partnership, LP and to be a beneficial owner of such shares. Mr. Pappas disclaims beneficial ownership of the shares held directly by JCP Investment Partnership, LP except to the extent of his pecuniary interest therein.
|
|
(g)
|
Financing Arrangements. No arrangements exist for the financing of Mr. Pappas as a nominee for election as a director of the Company.
|
|
(h)
|
Company Legal Proceedings. There are no material pending legal proceedings to which Mr. Pappas is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to the Company or any of its subsidiaries.
|
|
(i)
|
Other Legal Proceedings. During the last ten years:
|
|
(i)
|
No petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, and no receiver, fiscal agent or similar officer has been appointed by a court for, the business or property of (a) Mr. Pappas, (b) any partnership in which Mr. Pappas was a general partner at or within two years before the time of such filing, or (c) any corporation or business association of which Mr. Pappas was an executive officer at or within two years before the time of such filing.
|
|
(ii)
|
Mr. Pappas has not been convicted in a criminal proceeding or named the subject of a pending criminal proceeding, excluding traffic violations and other minor offenses.
|
|
(iii)
|
Mr. Pappas has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting, the following activities:
|
|
(1)
|
acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
|
|
(2)
|
engaging in any type of business practice; or
|
|
(3)
|
engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws.
|
|
(iv)
|
Mr. Pappas has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of Mr. Pappas to engage in any activity described in paragraph (i)(iii)(1) of this section or to be associated with persons engaged in any such activity.
|
|
(v)
|
Mr. Pappas has not been found by a court of competent jurisdiction in a civil action or by the Commission to have violated any Federal or State securities law where the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended or vacated.
|
|
(vi)
|
Mr. Pappas has not been found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law where the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated.
|
|
(vii)
|
Mr. Pappas has not been the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:
|
|
(1)
|
Any Federal or State securities or commodities law or regulation;
|
|
(2)
|
Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or
|
|
(3)
|
Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity.
|
|
(viii)
|
Mr. Pappas has not been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
|
|
(j)
|
Compensation from Company. Neither Mr. Pappas nor any associate or immediate family member has had an employment contract with or received any form of compensation, including plan and non-plan compensation, during the last three years from any person for services rendered in all capacities to the Company and its subsidiaries.
|
|
(k)
|
Nominee Interest in Matters to be Acted Upon. Mr. Pappas does not have any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon, other than election as a director of the Company, and except for any interest arising from the ownership of securities of the Company where Mr. Pappas receives no extra or special benefit not shared on a pro rata basis by all other holders of the same class.
|
|
(l)
|
Arrangements Relating to the Solicitation. Mr. Pappas was not selected as a nominee for director pursuant to any contract, arrangement or understanding with any person or company.
|
/s/ James Pappas | ||
James Pappas | ||
Date: 1/28/2012 |
1.4
|
Information Required of Ben Rosenzweig
|
|
(a)
|
Identification of Nominee.
|
|
(i)
|
Full name: Benjamin Lee Rosenzweig
|
|
(ii)
|
Business Address: 3280 Peachtree Rd., Suite 2670, Atlanta, GA 30305
|
|
(iii)
|
Age: 26
|
|
(b)
|
Employment and Business History. Mr. Rosenzweig is currently an Analyst at Privet Fund Management LLC, an investment firm. Mr. Rosenzweig also currently serves as a member of the Board of Directors and the Compensation and Governance & Nominating Committees of StarTek, Inc. (NYSE: SRT), a global provider of business process outsourcing services with a market capitalization of approximately $50 million. Prior to joining Privet Fund Management LLC in September 2008, Mr. Rosenzweig served as an Investment Banking Analyst in the Corporate Finance group of Alvarez and Marsal from June 2007 until May 2008, where he completed multiple distressed mergers and acquisitions, restructurings, capital formation transactions and advisory engagements across several industries. Mr. Rosenzweig was previously employed at Banc of America Securities and UBS. Mr. Rosenzweig graduated magna cum laude from Emory University with a Bachelor of Business Administration degree in Finance and a Bachelor of Arts in Economics.
|
|
(c)
|
Directorships. In the last five years, except as set forth in paragraph (b) above, Mr. Rosenzweig has not been a director of any company with a class of securities registered pursuant to section 12 of the Act or subject to the requirements of section 15(d) of the Act or in any company registered as an investment company under the Investment Company Act of 1940.
|
|
(d)
|
Qualifications. Privet Fund believes that Mr. Rosenzweig’s experience, background and financial expertise, including extensive involvement with capital markets transactions, investments and turnaround situations, along with his board-level experience, will allow Mr. Rosenzweig to bring valuable expertise to the Company’s Board.
|
|
(e)
|
Relationship with the Company. Mr. Rosenzweig has not previously been employed or held any other positions or offices or been party to any employment agreement, arrangements, transactions or other relationships with the Company or any parent, subsidiary or other affiliate of the Company.
|
|
(i)
|
To the best of Mr. Rosenzweig’s knowledge, he is not related by blood, marriage or adoption to any director, employee or nominee to become a director or officer of the Company.
|
|
(ii)
|
Mr. Rosenzweig is not an “interested person” under section 2(a)(19) of the Investment Company Act of 1940 and has no material relationship with the Company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the Company).
|
|
(f)
|
Stock Ownership. Mr. Rosenzweig is not the beneficial owner (as defined in Rule 13d-3 under the Act of 1934) of any securities of the Company other than the 3,029 shares of Common Stock Mr. Rosenzweig owns personally.
|
|
(g)
|
Financing Arrangements. No arrangements exist for the financing of Mr. Rosenzweig as a nominee for election as a director of the Company.
|
|
(h)
|
Company Legal Proceedings. There are no material pending legal proceedings to which Mr. Rosenzweig is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to the Company or any of its subsidiaries.
|
|
(i)
|
Other Legal Proceedings. During the last ten years:
|
|
(i)
|
No petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, and no receiver, fiscal agent or similar officer has been appointed by a court for, the business or property of (a) Mr. Rosenzweig, (b) any partnership in which Mr. Rosenzweig was a general partner at or within two years before the time of such filing, or (c) any corporation or business association of which Mr. Rosenzweig was an executive officer at or within two years before the time of such filing.
|
|
(ii)
|
Mr. Rosenzweig has not been convicted in a criminal proceeding or named the subject of a pending criminal proceeding, excluding traffic violations and other minor offenses.
|
|
(iii)
|
Mr. Rosenzweig has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting, the following activities:
|
|
(1)
|
acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
|
|
(2)
|
engaging in any type of business practice; or
|
|
(3)
|
engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws.
|
|
(iv)
|
Mr. Rosenzweig has not been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of Mr. Rosenzweig to engage in any activity described in paragraph (i)(iii)(1) of this section or to be associated with persons engaged in any such activity.
|
|
(v)
|
Mr. Rosenzweig has not been found by a court of competent jurisdiction in a civil action or by the Commission to have violated any Federal or State securities law where the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended or vacated.
|
|
(vi)
|
Mr. Rosenzweig has not been found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law where the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated.
|
|
(vii)
|
Mr. Rosenzweig has not been the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:
|
|
(1)
|
Any Federal or State securities or commodities law or regulation;
|
|
(2)
|
Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or
|
|
(3)
|
Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity.
|
|
(viii)
|
Mr. Rosenzweig has not been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
|
|
(j)
|
Compensation from Company. Neither Mr. Rosenzweig nor any associate or immediate family member has had an employment contract with or received any form of compensation, including plan and non-plan compensation, during the last three years from any person for services rendered in all capacities to the Company and its subsidiaries.
|
|
(k)
|
Nominee Interest in Matters to be Acted Upon. Mr. Rosenzweig does not have any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon, other than election as a director of the Company, and except for any interest arising from the ownership of securities of the Company where Mr. Rosenzweig receives no extra or special benefit not shared on a pro rata basis by all other holders of the same class.
|
|
(l)
|
Arrangements Relating to the Solicitation. Mr. Rosenzweig was not selected as a nominee for director pursuant to any contract, arrangement or understanding with any person or company.
|
/s/ Ben Rosenzweig | ||
Ben Rosenzweig
|
||
Date: 1/30/2012 |
2.
|
Stock Ownership Information
|
|
2.1
|
Nominee Stock Ownership
|
Stockholder
|
Shares
Owned
|
Title and
Class
|
Nature of Ownership
|
Percent
of Class1
|
||||||||||||
Todd Diener
|
0 | N/A | N/A | N/A | ||||||||||||
Ryan Levenson
|
547,881 |
Common Stock
|
Beneficial
|
9.1 | % | |||||||||||
James Pappas
|
201,815 |
Common Stock
|
Beneficial
|
3.4 | % | |||||||||||
Ben Rosenzweig
|
3,029 |
Common Stock
|
Beneficial
|
Less than 1
|
% |
|
2.2
|
Proposed Participant 2-Year Trading History
|
Trade Date
|
Nature of Transaction
(Purchase/Sale)
|
Number of
Shares
|
Price Per
Share1 |
|||||||
12/13/11
|
Purchase
|
50,000 | $ | 5.8300 | ||||||
11/22/11
|
Purchase
|
1,700 | $ | 5.6000 | ||||||
11/18/11
|
Purchase
|
1,300 | $ | 5.5985 | ||||||
11/17/11
|
Purchase
|
3,550 | $ | 5.6810 | ||||||
11/16/11
|
Purchase
|
309 | $ | 5.6300 | ||||||
11/15/11
|
Purchase
|
428 | $ | 5.5531 | ||||||
11/3/11
|
Purchase
|
100,000 | $ | 6.0000 | ||||||
11/1/11
|
Purchase
|
27,661 | $ | 6.7365 | ||||||
10/31/11
|
Purchase
|
65 | $ | 6.6500 | ||||||
10/28/11
|
Purchase
|
4,400 | $ | 6.7908 | ||||||
10/27/11
|
Purchase
|
1,000 | $ | 6.5660 | ||||||
10/26/11
|
Purchase
|
13,766 | $ | 6.5902 | ||||||
10/25/11
|
Purchase
|
6,398 | $ | 6.2380 | ||||||
10/24/11
|
Purchase
|
20,946 | $ | 6.1117 | ||||||
10/4/11
|
Purchase
|
5,120 | $ | 5.9977 | ||||||
10/3/11
|
Purchase
|
6,700 | $ | 5.9500 | ||||||
9/30/11
|
Purchase
|
3,300 | $ | 6.1952 | ||||||
9/29/11
|
Purchase
|
3,940 | $ | 5.8031 | ||||||
9/26/11
|
Purchase
|
1,693 | $ | 6.1455 | ||||||
9/23/11
|
Purchase
|
2,172 | $ | 5.9876 |
9/22/11
|
Purchase
|
2,988
|
$
|
5.9989
|
||||||
9/21/11
|
Purchase
|
2,474
|
$
|
6.1083
|
||||||
9/7/11
|
Purchase
|
3,120
|
$
|
6.2995
|
||||||
9/2/11
|
Purchase
|
100,297
|
$
|
6.2506
|
||||||
8/30/11
|
Purchase
|
13,000
|
$
|
6.7093
|
||||||
8/29/11
|
Purchase
|
7,562
|
$
|
6.6420
|
||||||
8/26/11
|
Purchase
|
2,292
|
$
|
6.4703
|
||||||
8/25/11
|
Purchase
|
3,500
|
$
|
6.3163
|
||||||
8/24/11
|
Purchase
|
35,881
|
$
|
6.0290
|
||||||
8/23/11
|
Purchase
|
4,118
|
$
|
5.9010
|
||||||
8/22/11
|
Purchase
|
8,300
|
$
|
5.8799
|
||||||
8/18/11
|
Purchase
|
9,425
|
$
|
5.5900
|
||||||
8/15/11
|
Purchase
|
1,200
|
$
|
5.6445
|
||||||
8/12/11
|
Purchase
|
5,300
|
$
|
5.6979
|
||||||
8/11/11
|
Purchase
|
2,171
|
$
|
5.5478
|
||||||
8/10/11
|
Purchase
|
3,611
|
$
|
5.1069
|
||||||
8/5/11
|
Purchase
|
3,800
|
$
|
5.5900
|
||||||
8/4/11
|
Purchase
|
5,500
|
$
|
5.5104
|
||||||
7/28/11
|
Purchase
|
400
|
$
|
6.5725
|
||||||
7/26/11
|
Purchase
|
2,000
|
$
|
6.6680
|
||||||
7/21/11
|
Purchase
|
2,800
|
$
|
6.4100
|
||||||
7/11/11
|
Purchase
|
1,367
|
$
|
6.4100
|
||||||
6/23/11
|
Purchase
|
1,400
|
$
|
6.9079
|
||||||
6/16/11
|
Purchase
|
600
|
$
|
6.2300
|
||||||
6/15/11
|
Purchase
|
5,005
|
$
|
6.1956
|
||||||
6/14/11
|
Purchase
|
7,798
|
$
|
6.1083
|
||||||
6/13/11
|
Purchase
|
1,314
|
$
|
6.0336
|
||||||
6/8/11
|
Purchase
|
200
|
$
|
6.0450
|
||||||
6/3/11
|
Purchase
|
400
|
$
|
5.9950
|
||||||
6/2/11
|
Purchase
|
2,400
|
$
|
6.0900
|
||||||
6/1/11
|
Purchase
|
3,000
|
$
|
6.0497
|
||||||
5/31/11
|
Purchase
|
9,600
|
$
|
6.1047
|
||||||
5/27/11
|
Purchase
|
2,300
|
$
|
5.9675
|
||||||
5/26/11
|
Purchase
|
1,719
|
$
|
5.8994
|
||||||
5/25/11
|
Purchase
|
10,234
|
$
|
5.8458
|
Trade Date
|
Nature of Transaction
(Purchase/Sale)
|
Number of
Shares
|
Price Per
Share1
|
|||||||
12/13/2011
|
Purchase
|
400 | $ | 5.91 | ||||||
12/13/2011
|
Purchase
|
100 | $ | 5.756 | ||||||
12/13/2011
|
Purchase
|
10 | $ | 5.76 | ||||||
12/13/2011
|
Purchase
|
141 | $ | 5.896 | ||||||
12/13/2011
|
Purchase
|
549 | $ | 5.89 | ||||||
12/12/2011
|
Purchase
|
1,000 | $ | 5.88 | ||||||
12/12/2011
|
Purchase
|
100 | $ | 5.76 | ||||||
12/12/2011
|
Purchase
|
100 | $ | 5.919 | ||||||
12/8/2011
|
Purchase
|
700 | $ | 5.8189 | ||||||
12/8/2011
|
Purchase
|
100 | $ | 5.849 | ||||||
12/8/2011
|
Purchase
|
1,300 | $ | 5.85 | ||||||
12/7/2011
|
Purchase
|
100 | $ | 5.79 | ||||||
12/7/2011
|
Purchase
|
400 | $ | 5.745 | ||||||
12/7/2011
|
Purchase
|
600 | $ | 5.79 | ||||||
12/7/2011
|
Purchase
|
400 | $ | 5.7841 | ||||||
12/7/2011
|
Purchase
|
3,200 | $ | 5.75 | ||||||
12/7/2011
|
Purchase
|
286 | $ | 5.7 | ||||||
12/7/2011
|
Purchase
|
1,200 | $ | 5.699 | ||||||
12/6/2011
|
Purchase
|
22 | $ | 5.71 | ||||||
12/5/2011
|
Purchase
|
4,687 | $ | 5.69 | ||||||
12/2/2011
|
Purchase
|
1,426 | $ | 5.65 | ||||||
12/1/2011
|
Purchase
|
600 | $ | 5.61 | ||||||
11/30/2011
|
Purchase
|
3,336 | $ | 5.55 | ||||||
11/30/2011
|
Purchase
|
200 | $ | 5.54 | ||||||
11/30/2011
|
Purchase
|
300 | $ | 5.53 | ||||||
11/30/2011
|
Purchase
|
100 | $ | 5.6299 | ||||||
11/30/2011
|
Purchase
|
5,000 | $ | 5.6399 |
Trade Date
|
Nature of Transaction
(Purchase/Sale)
|
Number of Shares
|
Price Per
Share1
|
|||||||
11/9/2011
|
Purchase
|
340 | $ | 6.00 | ||||||
11/9/2011
|
Purchase
|
995 | $ | 6.00 | ||||||
9/27/2011
|
Purchase
|
1,694 | $ | 6.00 |
Trade Date
|
Nature of Transaction
(Purchase/Sale)
|
Number of
Shares
|
Price Per
Share1
|
|||||||
1/31/2012
|
Purchase
|
2,700 | $ | 6.5996 | ||||||
1/20/2012
|
Purchase
|
400 | $ | 6.50 | ||||||
1/18/2012
|
Purchase
|
300 | $ | 6.34 | ||||||
1/17/2012
|
Purchase
|
332 | $ | 6.50 | ||||||
1/10/2012
|
Purchase
|
2,925 | $ | 6.65 | ||||||
1/4/2012
|
Purchase
|
400 | $ | 6.25 | ||||||
1/3/2012
|
Purchase
|
1,200 | $ | 6.24 | ||||||
12/30/2011
|
Purchase
|
1,697 | $ | 6.24 | ||||||
12/29/2011
|
Purchase
|
500 | $ | 6.25 | ||||||
12/28/2011
|
Purchase
|
2,973 | $ | 6.25 | ||||||
12/27/2011
|
Purchase
|
300 | $ | 6.25 | ||||||
12/23/2011
|
Purchase
|
8,153 | $ | 6.22 | ||||||
12/22/2011
|
Purchase
|
1,800 | $ | 6.21 | ||||||
12/13/2011
|
Purchase
|
178,135 | $ | 5.83 |