UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO § 240.13d-2(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 5)*
CHINACAST EDUCATION CORPORATION |
(Name of Issuer)
Common Stock, par value $0.0001 per share |
(Title of Class of Securities)
16946T109 |
(CUSIP Number)
Ned Sherwood
c/o ZS Fund L.P.
1133 Avenue of the Americas
New York, New York 10036
(212) 398-6200
With copies to:
Brian J. Lane
Gibson, Dunn & Crutcher LLP
1050 Washington Avenue, N.W.
Washington, DC 20036-5306
(202) 887-3646
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
January 10, 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 ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following pages)
SCHEDULE 13D
CUSIP No. 16946T109 | Page 2 of 7 Pages |
1 |
NAME OF REPORTING PERSONS
Ned L. Sherwood | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) * (b) **
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS
PF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
775,141 | ||||
8 | SHARED VOTING POWER
2,625,488 | |||||
9 | SOLE DISPOSITIVE POWER
775,141 | |||||
10 | SHARED DISPOSITIVE POWER
2,625,488 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,400,629 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0% | |||||
14 |
TYPE OF REPORTING PERSON
IN |
* | Only with respect to Ned L. Sherwood, ZS EDU L.P., ZS EDU GP LLC and Robert Horne. |
** | Only with respect to Daniel Tseung. |
SCHEDULE 13D
CUSIP No. 16946T109 | Page 3 of 7 Pages |
1 |
NAME OF REPORTING PERSONS
ZS EDU L.P. | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) * (b) **
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS
OO | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
| |||||
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
2,625,488 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
2,625,488 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,625,488 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4% | |||||
14 |
TYPE OF REPORTING PERSON
PN |
* | Only with respect to Ned L. Sherwood, ZS EDU L.P., ZS EDU GP LLC and Robert Horne. |
** | Only with respect to Daniel Tseung. |
SCHEDULE 13D
CUSIP No. 16946T109 | Page 4 of 7 Pages |
1 |
NAME OF REPORTING PERSONS
ZS EDU GP LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) * (b) **
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS
OO | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
| |||||
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
2,625,488 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
2,625,488 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,625,488 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.4% | |||||
14 |
TYPE OF REPORTING PERSON
OO |
* | Only with respect to Ned L. Sherwood, ZS EDU L.P., ZS EDU GP LLC and Robert Horne. |
** | Only with respect to Daniel Tseung. |
SCHEDULE 13D
CUSIP No. 16946T109 | Page 5 of 7 Pages |
1 |
NAME OF REPORTING PERSONS
Robert Horne | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) * (b) **
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS
PF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
50,000 | ||||
8 | SHARED VOTING POWER
2,625,488 | |||||
9 | SOLE DISPOSITIVE POWER
50,000 | |||||
10 | SHARED DISPOSITIVE POWER
2,625,488 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,675,488 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% | |||||
14 |
TYPE OF REPORTING PERSON
IN |
* | Only with respect to Ned L. Sherwood, ZS EDU L.P., ZS EDU GP LLC and Robert Horne. |
** | Only with respect to Daniel Tseung. |
Page 6 of 7 Pages
The Statement on Schedule 13D, as originally filed with the Securities and Exchange Commission (the SEC) on March 24, 2011, and as amended and restated on May 12, 2011 and November 22, 2011, and as amended on December 9, 2011 and December 15, 2011 (as amended and amended and restated, the Schedule 13D) by the Reporting Persons named therein is hereby amended by this Amendment No. 5 (Amendment No. 5) to the Schedule 13D. Capitalized terms used but not defined herein shall have the meanings set forth in the Schedule 13D.
Item 4. | Purpose of Transaction. |
Item 4 is supplemented by adding the following:
On January 10, 2012, Mr. Sherwoods Nominees were elected by a substantial margin at the Issuers 2011 Annual Meeting of Stockholders. Despite this, the Issuer has announced its intent to disregard Mr. Sherwoods nominations. Mr. Sherwood disagrees with the Issuers position and has issued a press release, which contains a copy of a letter delivered to the Issuers Board of Directors, regarding these matters. The press release and letter to the Board are attached hereto as Exhibits 4 and 5, respectively, are incorporated herein by reference and qualify the foregoing in their entirety.
Item 5. | Interest in Securities of the Issuer. |
Item 5 is supplemented by adding the following:
The information set forth in Item 4 of this Amendment No. 5 is incorporated herein by reference.
Item 7. Materials to be Filed as Exhibits.
Item 7 is supplemented by adding the following:
Exhibit 4: Press Release
Exhibit 5: Letter from Ned Sherwood to the Board of Directors of ChinaCast Education Corporation
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
January 10, 2012 | Ned Sherwood | |||||
By: | /s/ Ned Sherwood | |||||
Name: | Ned Sherwood | |||||
January 10, 2012 | ZS EDU L.P. | |||||
By: | /s/ Ned Sherwood | |||||
Name: | Ned Sherwood | |||||
Title: | Manager of the General Partner, ZS EDU GP LLC | |||||
January 10, 2012 | ZS EDU GP LLC | |||||
By: | /s/ Ned Sherwood | |||||
Name: | Ned Sherwood | |||||
Title: | Manager | |||||
January 10, 2012 | Robert Horne | |||||
By: | /s/ Robert Horne | |||||
Name: | Robert Horne |
Exhibit 4
NED SHERWOOD: CHINACAST STOCKHOLDERS ELECT THREE SHERWOOD NOMINEES BY SUBSTANTIAL MARGIN
- In Response, ChinaCast Management Disregards Votes and Calls Unlawful Recess
NEW YORK, Jan. 10, 2012 Ned Sherwood, a major stockholder of ChinaCast Education Corporation (Nasdaq GS: CAST), today announced that at the scheduled annual meeting ChinaCasts stockholders voted to elect, by a substantial margin, Ned Sherwoods three director nominees Ned Sherwood, Derek Feng and Daniel Tseung.
In response, senior management decided to disregard Mr. Sherwoods nominees and declared an unlawful recess of the annual meeting. Following the unlawful recess, Mr. Sherwood delivered the following letter to the ChinaCast Board of Directors:
Dear Fellow Members of the Board:
I am writing to express my objection to the outrageous and unlawful actions undertaken by ChinaCasts senior management and their advisors at last nights annual meeting of stockholders. In violation of their fiduciary duties to ChinaCast and its stockholders, Messrs. Ron Chan and Tony Sena disregarded the clear and unequivocal decision and order of the Delaware Court of Chancery to disenfranchise stockholders and inequitably manipulated the corporate election machinery in order to perpetuate Mr. Chans control over ChinaCasts Board of Directors.
First, Mr. Sena violated the decision and order of the Delaware Court of Chancery when he deemed improper the nominees and proposals properly brought before the meeting by ZS EDU L.P. As you are well aware, on December 20, 2011, Vice Chancellor Parsons issued a temporary restraining order against ChinaCast and Messrs. Chan, Santos and Tang that moved the date of ChinaCasts annual meeting for the express purpose of allowing me to solicit proxies in support of my slate of nominees. The Court specifically stated that the temporary restraining order enable[d] Plaintiffs [Mr. Sherwood and ZS EDU L.P.] to solicit proxies for their competing short slate of directors at the Annual Meeting notwithstanding Defendants contrary construction of Section 3.3 of the Companys bylaws (emphasis added). Indeed, notwithstanding the Courts holding in its December 20th opinion that Mr. Chan and other Board members violated the scrupulous fairness required of corporate elections by excluding [Mr. Sherwood] from merely running for election, that is exactly what ChinaCasts senior management and their advisors have done once again, in clear violation of the Courts decision and order and your fiduciary obligations.
It is noteworthy that prior to tonights actions, ChinaCast and Mr. Chan have issued numerous press releases, filed supplemental proxy materials and, along with Mr. Santos and others, met with stockholders soliciting support for managements slate, actions that make clear they deemed this a contested election.
When it became abundantly clear by the beginning of last nights annual meeting that stockholders would elect my three nominees by a substantial margin, however, ChinaCast senior management and their advisors, without Board consultation or approval, decided to delay
completion of the annual meeting and deem improper (and disregard entirely) the stockholder votes in favor of my nominees and proposals. This was nothing more than a desperate and inequitable manipulation of the corporate election machinery. There is no basis for management or its advisors to take such action on behalf of the Company or the Board. All of these actions have unquestionably disenfranchised ChinaCasts stockholders.
I demand that the Company immediately acknowledge the validity of all my nominations and proposals brought before the annual meeting. I also demand that the polls be deemed closed as of the time of the unlawful recess declared by Mr. Senas advisor, who had no power or authorization to take such action. In addition, since at the time the polls should have been declared closed my three nominees were elected to the Board by a substantial margin, I demand that the ChinaCast Board take no further action until the newly elected Board can meet.
I hereby reserve all my rights as a director and stockholder of ChinaCast against the senior officers and their advisors who facilitated Senas actions at tonights meeting, including, without limitation, any actions available to me against such officers and other Board members for contempt of Court, breach of fiduciary duty and other violations of law.
Sincerely, |
/s/ Ned Sherwood |
Ned Sherwood |
cc: | Adam Offenhartz, Gibson, Dunn & Crutcher LLP |
Raymond DiCamillo, Richards, Layton & Finger, P.A.
Mitchell Nussbaum, Loeb & Loeb LLP
Lewis Lazarus, Morris James LLP
Peter Ladig, Morris James LLP
Katherine Neikirk, Morris James LLP
Gibson, Dunn & Crutcher LLP is acting as legal advisor to Ned Sherwood.
Contact:
Innisfree M&A Incorporated
Scott Winter, 212-750-5833
2
Exhibit 5
January 10, 2012
Dear Fellow Members of the Board:
I am writing to express my objection to the outrageous and unlawful actions undertaken by ChinaCasts senior management and their advisors at last nights annual meeting of stockholders. In violation of their fiduciary duties to ChinaCast and its stockholders, Messrs. Ron Chan and Tony Sena disregarded the clear and unequivocal decision and order of the Delaware Court of Chancery to disenfranchise stockholders and inequitably manipulated the corporate election machinery in order to perpetuate Mr. Chans control over ChinaCasts Board of Directors.
First, Mr. Sena violated the decision and order of the Delaware Court of Chancery when he deemed improper the nominees and proposals properly brought before the meeting by ZS EDU L.P. As you are well aware, on December 20, 2011, Vice Chancellor Parsons issued a temporary restraining order against ChinaCast and Messrs. Chan, Santos and Tang that moved the date of ChinaCasts annual meeting for the express purpose of allowing me to solicit proxies in support of my slate of nominees. The Court specifically stated that the temporary restraining order enable[d] Plaintiffs [Mr. Sherwood and ZS EDU L.P.] to solicit proxies for their competing short slate of directors at the Annual Meeting notwithstanding Defendants contrary construction of Section 3.3 of the Companys bylaws (emphasis added). Indeed, notwithstanding the Courts holding in its December 20th opinion that Mr. Chan and other Board members violated the scrupulous fairness required of corporate elections by excluding [Mr. Sherwood] from merely running for election, that is exactly what ChinaCasts senior management and their advisors have done once again, in clear violation of the Courts decision and order and your fiduciary obligations.
It is noteworthy that prior to tonights actions, ChinaCast and Mr. Chan have issued numerous press releases, filed supplemental proxy materials and, along with Mr. Santos and others, met with stockholders soliciting support for managements slate, actions that make clear they deemed this a contested election.
When it became abundantly clear by the beginning of last nights annual meeting that stockholders would elect my three nominees by a substantial margin, however, ChinaCast senior management and their advisors, without Board consultation or approval, decided to delay completion of the annual meeting and deem improper (and disregard entirely) the stockholder votes in favor of my nominees and proposals. This was nothing more than a desperate and inequitable manipulation of the corporate election machinery. There is no basis for management or its advisors to take such action on behalf of the Company or the Board. All of these actions have unquestionably disenfranchised ChinaCasts stockholders.
I demand that the Company immediately acknowledge the validity of all my nominations and proposals brought before the annual meeting. I also demand that the polls be deemed closed as of the time of the unlawful recess declared by Mr. Senas advisor, who had no power or
authorization to take such action. In addition, since at the time the polls should have been declared closed my three nominees were elected to the Board by a substantial margin, I demand that the ChinaCast Board take no further action until the newly elected Board can meet.
I hereby reserve all my rights as a director and stockholder of ChinaCast against the senior officers and their advisors who facilitated Senas actions at tonights meeting, including, without limitation, any actions available to me against such officers and other Board members for contempt of Court, breach of fiduciary duty and other violations of law.
Sincerely, |
/s/ Ned Sherwood |
Ned Sherwood |
cc: | Adam Offenhartz, Gibson, Dunn & Crutcher LLP |
Raymond DiCamillo, Richards, Layton & Finger, P.A.
Mitchell Nussbaum, Loeb & Loeb LLP
Lewis Lazarus, Morris James LLP
Peter Ladig, Morris James LLP
Katherine Neikirk, Morris James LLP
2