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(Title of Class of Securities)
70469L100
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(CUSIP Number)
Frank S. Vellucci, Esq.
Norton Rose Fulbright US LLP
1301 Avenue of the AmericasNew York, NY 10019 (212) 408-5100 |
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
July 20, 2019 |
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(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subect of this Schedule 13D, and is filing this schedule because of Sections
240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☒
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 (the "Act") or otherwise
subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.
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CUSIP No. 70469L100
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13D/A
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Page 2 of 9 Pages |
1
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NAMES OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Cap 1 LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☐
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(b)
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☐
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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PF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Delaware
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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15,345,0411 shares of Common Stock
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8
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SHARED VOTING POWER
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0
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9
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SOLE DISPOSITIVE POWER
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15,345,0411 shares of Common Stock
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10
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SHARED DISPOSITIVE POWER
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0
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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15,345,0411 shares of Common Stock
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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53.3 2
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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OO
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1
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Consists of (i) 1,797,705 shares of Common Stock (as defined below), (ii) 3,179,650 shares of Common Stock issuable upon conversion of the Series A Cumulative Convertible Preferred Stock (the “Series A Preferred Stock”) issued on
November 2, 2016, (iii) 3,179,650 shares of Common Stock issuable upon conversion of the Series A Preferred Stock issued on November 21, 2018, (iv) an aggregate of 2,719,018 shares of Common Stock issuable upon exercise of warrants issued
on November 2, 2016 (the “2016 Warrants”), and (v) an aggregate of 4,469,018 shares of Common Stock issuable upon exercise of warrants issued on November 21, 2018 (the “2018 Warrants,” and together with the 2016 Warrants, the
“Warrants”).
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2
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This calculation is rounded to the nearest tenth and is based upon (i) 15,227,562 shares of Common Stock outstanding as of July 19, 2019, as disclosed in the Merger Agreement (as defined below) attached as an exhibit to the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on July 22, 2019, plus (ii) an aggregate of 13,547,336 shares of Common Stock issuable upon conversion
of the Series A Preferred Stock and upon exercise of the Warrants held by Cap 1 LLC.
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CUSIP No. 70469L100
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13D/A
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Page 3 of 9 Pages |
1
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NAMES OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Richard S. Sackler, M.D.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☐
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(b)
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☐
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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PF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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United States of America
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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102,595 shares of Common stock
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8
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SHARED VOTING POWER
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0
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9
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SOLE DISPOSITIVE POWER
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102,595 shares of Common Stock
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10
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SHARED DISPOSITIVE POWER
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0
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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102,595 shares of Common Stock
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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0.7%3
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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IN
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3
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This calculation is rounded to the nearest tenth and is based upon 15,227,562 shares of Common Stock outstanding as of July 19, 2019, as disclosed in the Merger Agreement (as defined below) attached as an exhibit to the Company’s Current
Report on Form 8-K filed with the SEC on July 22, 2019.
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CUSIP No. 70469L100
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13D/A
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Page 4 of 9 Pages |
1
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NAMES OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Richard Sackler Family Foundation, Inc. 4
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☐
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(b)
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☐
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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PF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Delaware
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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26,200 shares of Common Stock
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8
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SHARED VOTING POWER
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0
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9
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SOLE DISPOSITIVE POWER
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26,200 shares of Common Stock
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10
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SHARED DISPOSITIVE POWER
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0
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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26,200 shares of Common Stock
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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0.2%5
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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CO
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4
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Prior to March 16, 2018, the Richard Sackler Family Foundation, Inc. was known as the Richard and Beth Sackler Foundation, Inc.
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5
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This calculation is rounded to the nearest tenth and is based upon 15,227,562 shares of Common Stock outstanding as of July 19, 2019, as disclosed in the Merger Agreement (as defined below) attached as an
exhibit to the Company’s Current Report on Form 8-K filed with the SEC on July 22, 2019.
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CUSIP No. 70469L100
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13D/A
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Page 5 of 9 Pages |
1
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NAMES OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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David Sackler
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☐
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(b)
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☐
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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PF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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United States of America
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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100,000 shares of Common Stock
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8
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SHARED VOTING POWER
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0
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9
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SOLE DISPOSITIVE POWER
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100,000 shares of Common Stock
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10
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SHARED DISPOSITIVE POWER
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0
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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100,000 shares of Common Stock
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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0.7%6
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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IN
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6 |
This calculation is rounded to the nearest tenth and is based upon 15,227,562 shares of Common Stock outstanding as of July 19, 2019, as disclosed in the Merger Agreement (as defined below) attached as an
exhibit to the Company’s Current Report on Form 8-K filed with the SEC on July 22, 2019.
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Item 4. |
Purpose of Transaction.
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Item 5. |
Interest in Securities of the Company.
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Shares Beneficially Owned7
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Percent of Class8
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1. Cap 1:9
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Sole Voting Power
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15,345,041
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53.3 %
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Shared Voting Power
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-0-
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0%
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Sole Dispositive Power
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15,345,041
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53.3%
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Shared Dispositive Power
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-0-
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0%
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Aggregate Voting and Dispositive Power
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15,345,041
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53.3%
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2. Dr. Sackler:
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Sole Voting Power
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102,595
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0.7%
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Shared Voting Power
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-0-
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0%
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Sole Dispositive Power
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102,595
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0.7%
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Shared Dispositive Power
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-0-
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0%
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Aggregate Voting and Dispositive Power
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102,595
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0.7%
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3. The Foundation:
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Sole Voting Power
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26,200
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0.2%
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Shared Voting Power
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-0-
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0%
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Sole Dispositive Power
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26,200
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0.2%
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Shared Dispositive Power
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-0-
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0%
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Aggregate Voting and Dispositive Power
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26,200
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0.2%
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4. David Sackler:
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Sole Voting Power
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100,000
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0.7%
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Shared Voting Power
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-0-
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0%
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Sole Dispositive Power
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100,000
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0.7%
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Shared Dispositive Power
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-0-
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0%
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Aggregate Voting and Dispositive Power
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100,000
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0.7%
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7 |
Summer Road LLC (“Summer Road”) is the trading manager of the Reporting Persons, and in that capacity Summer Road acts on behalf of the Reporting Persons as an agent. Rory A. Held, in his
capacity as an employee of Summer Road, provides investment management services to the Reporting Persons. Summer Road and Mr. Held have no pecuniary interest in the shares of Common Stock beneficially owned by the Reporting Persons. Summer
Road is a “family office” (as defined in Investment Company Act of 1940 Rule 202(a)(11)(G)-1 (the “Family Office Rule”)) of the same family, and any voting power or investment power Summer Road or Mr. Held may hold over the Shares is
ultimately attributed to the Reporting Persons. Mr. Held is a member of the Company's Board of Directors and was nominated for election by Cap 1 pursuant to the terms of the Stockholders Agreement by and between the Company, Cap 1 and
Timothy D. Boyd, Stephen J. Mueller and Richard K. Deutsch, as summarized in the Company’s Current Report on Form 8-K filed with the SEC on November 8, 2016. Pursuant to an arrangement between Mr. Held and Summer Road, any compensation that
would otherwise be payable to Mr. Held for his services as a director of the Company will be paid directly to Summer Road as his employer. Pursuant to this arrangement, an aggregate of 24,589 Restricted Stock Units (“RSUs”) that were
granted to Mr. Held as compensation for his service as a director of the Company have been paid to Summer Road. The RSUs give the recipient the right to receive (i) the number of shares of Common Stock underlying the RSUs or (ii) as may be
elected by the Company's compensation committee, cash equal to the closing sale price per share of Common Stock on the trading day immediately prior to the distribution date times the number of shares underlying the RSUs. The RSUs vest in
full one year from the date of grant provided that the recipient is serving on the board of directors at that time. Vested RSUs will be distributed to the recipient on the date that is six months after the day the recipient's service on the
board of directors terminates for any reason. RSUs were granted to Mr. Held on November 7, 2016, October 4, 2017 and October 10, 2018.
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8 |
This calculation is rounded to the nearest tenth and is based upon (i) 15,227,562 shares of Common Stock outstanding as of July 19, 2019, as disclosed in the Merger Agreement, plus (ii) an aggregate of 13,547,336 shares of Common Stock issuable upon conversion of the Series A Preferred Stock and upon exercise of the Warrants held by Cap 1.
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9 |
Cap 1 is a Delaware limited liability company wholly owned by Crystal Fiduciary Company, LLC, as Trustees of the 1974 Irrevocable Trust A FBO BS and RSS. The beneficiaries of the
1974 Irrevocable Trust A FBO BS and RSS are Beverly Sackler, Dr. Sackler and the issue of Dr. Sackler. Its shares listed as beneficially owned in this table consist of 1,797,705 shares of Common Stock, 6,359,300 shares of Common Stock
issuable upon conversion of the Series A Preferred Stock and an aggregate of 7,188,036 shares of Common Stock issuable upon exercise of the Warrants. David Sackler is the president of Summer Road and one of the beneficiaries of Cap 1. Cap 1
is a family client of Summer Road.
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Item 6. |
Contracts, Arrangements, Understandings or Relations with Respect to Securities of the Company.
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Item 7. |
Material to be Filed as Exhibits.
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Exhibit T
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Voting, Support and Consent Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc., Cap 1 LLC, Peak Resorts, Inc., Snow Time Acquisition, Inc. and the subsidiary guarantors listed on the signature pages thereto, is
incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on July 22, 2019 (File No. 001-35363).
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Exhibit U
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and Richard S. Sackler, M.D., is incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed with the SEC on
July 22, 2019 (File No. 001-35363).
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Exhibit V
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and the Richard Sackler Family Foundation, Inc. (formerly known as the Richard and Beth Sackler Foundation, Inc.), is incorporated herein by
reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed with the SEC on July 22, 2019 (File No. 001-35363).
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Exhibit W
|
Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and David Sackler, is incorporated herein by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed with the SEC on July 22,
2019 (File No. 001-35363).
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Cap 1 LLC
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By: /s/ Stephen A. Ives
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Name: Stephen A. Ives
Title: Vice President |
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Richard S. Sackler, M.D.
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By: /s/ Stephen A. Ives
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Name: Stephen A. Ives
Attorney-in-Fact for Richard S. Sackler, M.D. |
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Richard Sackler Family Foundation, Inc.
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By: /s/ Stephen A. Ives
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Name: Stephen A. Ives
Attorney-in-Fact for the Richard Sackler Family Foundation, Inc. |
David Sackler
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By: /s/ Stephen A. Ives
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Name: Stephen A. Ives
Attorney-in-Fact for David Sackler |