UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Amendment No. 3
NewLead Holdings Ltd.
(Name of Issuer)
Common Shares, par value $0.01 per share
(Title of Class of Securities)
G64626 115
Michail S. Zolotas
GRANDUNION INC.
8 Zerva Nap., Glyfada
Athens 166 75 Greece
+30 (210) 428-8520
Copy to:
Kenneth R. Koch, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
666 Third Avenue
New York, New York 10017
(212) 935-3000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 2,
2012
(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
that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box. o
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).
EXPLANATORY NOTE
Except as
specifically amended and supplemented by this Amendment No. 3,
and by Amendment No. 2 filed on September 16, 2010
(“Amendment No. 2”) and by Amendment No. 1
filed on October 22, 2009 (“Amendment No. 1”), all other provisions of the Schedule 13D filed by
the Reporting Persons on September 28, 2009 (the “Original Schedule 13D”) remain in full force and
effect. The original Schedule 13D together with each of the Amendments thereto is referred to
herein as the “Schedule 13D.” Capitalized terms used herein and not otherwise defined shall have
the same meanings ascribed to them in the Original Schedule 13D,
or Amendment No. 1 or Amendment No. 2.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 to the Schedule 13D is amended by incorporating by reference therein the information set
forth in Item 5(a), (b) and (c) to this Amendment
No. 3.
Item 4. Purpose of Transaction
The information in Items 5 and 6 are incorporated by reference herein and Item 4 to the Schedule
13D is amended and restated as follows:
Except as otherwise set forth in this Amendment No. 3, none of the Reporting Persons has any
current or proposed plans relating to or which could result in:
(a) The acquisition by any person of additional securities of the Issuer, or the disposition
of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation,
involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or any of its
subsidiaries;
(d) Any change in the present board of directors or management of the Issuer, including any
plans or proposals to change the number of term of directors or to fill any existing vacancies on
the board;
(e) Any material change in the present capitalization or dividend policy of the Issuer;
(f) Any other material change in the Issuer’s business or corporate structure including but
not limited to, if the Issuer is a registered closed-end investment company, any plans or proposals
to make any changes in its investment policy for which a vote is required by section 13 of the
Investment Company Act of 1940;
(g) Changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other
actions which may impede the acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer 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;
Item 5. Interest in Securities of the Issuer
The information in Item 6 is incorporated by reference herein and Items 5(a), (b) and (c) to the
Schedule 13D is amended and restated as follows:
GU is the beneficial owner of 2,059,474 Common Shares, representing 11.8% of the Common
Shares of the Company. GU has the sole power to vote or direct the vote of, or to
dispose or direct the disposition of, these shares. Effective as of February 29, 2012, the Voting
Agreement between Rocket Marine Inc. and GU was terminated. As a result, the Rocket Marine shares
previously subject to the Voting Agreement are no longer included in the beneficial ownership of
GU, Michail S. Zolotas or Nicholas G. Fistes. Mr. Fistes and Mr. Zolotas each own 50% of the issued
and outstanding capital stock of GU and share voting power of the Common Shares owned by GU. As
such, each of Mr. Fistes and Mr. Zolotas may be deemed to be the beneficial owner of the Common
Shares beneficially owned by GU.
Focus is the beneficial owner of 16,100,001 Common Shares representing 51.5% of the Common
Shares of the Company. Of the 16,100,001 Common Shares, 13,877,778 represent the Common Shares
underlying the $124.9 million outstanding principal amount of the convertible notes (conversion
price is $9.00 per share). Upon conversion of the convertible notes, Focus will have the sole power
to vote or to direct the vote of, and to dispose or direct the disposition of, the Common Shares
issued, provided, however, that Focus has pledged the convertible notes as collateral for the loan
referred to in Item 3 of Amendment No. 1. Mr. Zolotas may also be deemed to be the beneficial owner
of the shares of Common Stock beneficially owned by Focus.
Meltemi Deck EPE (“Meltemi”) and Terra Stabile A.E. (“Terra”) beneficially own 69,334 Common
Shares and 5,247 Common shares, respectively. Meltemi and Terra each has the sole power to vote or
direct the vote of, or to dispose or direct the disposition of, their respective shares. These
shares were acquired in February 15, 2012, in connection with a three-way settlement among the
Company, Meltemi and Terra, and certain third party creditors in respect of certain trade payables
owed to the third party creditors. Meltemi and Terra are controlled by Mr. Zolotas and, hence, the
Common Shares owned by Meltemi and Terra may also be deemed to be beneficially owned by Mr.
Zolotas.
Mr. Zolotas individually owns 872,584 Common Shares, including 764,584 Common Shares received
on January 2, 2012 in connection with Mr. Zolotas’ employment agreement (as described in Item 6),
over which Mr. Zolotas has sole voting and investment control. Including the other Common Shares
beneficially owned through affiliated entities, Mr. Zolotas may be deemed to beneficially own an
aggregate of 19,106,640 Common Shares, or 61.1% of the outstanding Common Shares.
Mr. Fistes individually owns 488,084 Common Shares, including 452,084 Common Shares received
on January 2, 2012 in connection with Mr. Fistes’ employment agreement (as described in Item 6),
over which Mr. Fistes has sole voting and investment control. Including the other Common Shares
beneficially owned through affiliated entities, Mr. Fistes may be deemed to beneficially own an
aggregate of 2,547,558 Common shares, or 14.6% of the outstanding Common Shares.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
The information in Item 5 is incorporated by reference herein and Item 6 of the Schedule 13D is
amended by incorporating by reference therein the information set forth below:
The Company entered into employment agreements with Mr. Fistes and Mr. Zolotas as of January
2, 2012. The employment agreements entitle each executive to an annual base salary and an annual
incentive bonus that is payable in Common Shares. The agreements are retroactive for the years 2010
and 2011 and effective until December 31, 2016, after which they will automatically renew for
additional one-year periods, unless terminated in accordance with the terms of such agreements.
Pursuant to the employment agreements, Messrs. Zolotas and Fistes will be entitled to the
following compensation:
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for the period between October 13, 2009 until the end of 2010, Messrs. Zolotas and
Fistes will be entitled to an aggregate base salary of $1,300,000 and bonus of $300,000
which will be paid in shares priced at $24.00 per share, resulting in an aggregate of
issuance of 66,667 shares; |
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for 2011, Messrs. Zolotas and Fistes will be entitled to an aggregate base salary of
$1,300,000 and bonus of $300,000 which will be paid in shares priced at $2.00 per
share, resulting in an aggregate of issuance of 800,000 shares; and |
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for each year from 2012 until the end of 2016, Messrs. Zolotas and Fistes will be
entitled to an aggregate base salary of $1,450,000 and bonus of $1,450,000 which will
be paid in shares priced at $2.00 per share, resulting in an aggregate of issuance of
1,450,000 shares. |
Under each employment agreement, upon a change in control of the Company, any stock based
awards to the employee will vest. If prior to the effective date of a change of control or after
the second anniversary of the effective date of a change in control, the employee is terminated
without “cause” or resigns for “good reason,” the employee will be entitled to receive his then
current base salary through the end of the expiration period of the agreement, in addition to any
benefits accrued through the date of his termination. If on or after the effective date of a change
of control and prior to the second anniversary of the effective date of the change of control, the
employee is terminated without “cause” or resigns for “good reason,” the employee will be entitled
to five times his then current base salary and five times the annual bonus for the prior year
within 30 days following the effectiveness of the termination. If an executive’s employment is
terminated for “cause” or voluntarily by the employee without “good reason,” the employee will not
be entitled to any salary, benefits or reimbursements beyond those accrued through the date of his
termination.
Item 7. Material to be Filed as Exhibits
Exhibit A:
Joint Filing Undertaking