UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.4)
Metromedia International Group, Inc.
-----------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
------------------------------
(Title of Class of Securities)
591689104
--------------
(CUSIP Number)
Martin D. Sklar, Esq.
Kleinberg, Kaplan, Wolff & Cohen, P.C.
551 Fifth Avenue, New York, New York 10176
Tel: (212) 986-6000
-----------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 15, 2006
------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box |_|.
SCHEDULE 13D
CUSIP No 591689104
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Esopus Creek Value LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 3,830,000
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
3,830,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,830,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.1%
14 TYPE OF REPORTING PERSON
PN
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Esopus Creek Advisors LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
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) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 3,830,000
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
3,830,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,830,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.1%
14 TYPE OF REPORTING PERSON
OO
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Andrew L. Sole
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
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) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 3,830,000
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
3,830,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,830,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.1%
14 TYPE OF REPORTING PERSON
IN
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Joseph S. Criscione
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
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) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 3,830,000
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
3,830,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,830,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.1%
14 TYPE OF REPORTING PERSON
IN
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Black Horse Capital LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 4,552,165
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
4,552,165
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,552,165
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.8%
14 TYPE OF REPORTING PERSON
PN
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Black Horse Capital (QP) LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 1,645,068
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
1,645,068
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,645,068
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
14 TYPE OF REPORTING PERSON
PN
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Black Horse Capital Offshore Ltd.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 1,104,071
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
1,104,071
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,104,071
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
14 TYPE OF REPORTING PERSON
CO
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Black Horse Capital Management LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
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) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 6,167,233
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
6,167,233
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,167,233
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.5%
14 TYPE OF REPORTING PERSON
OO
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Black Horse Capital Advisors LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
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) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 1,104,071
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
1,104,071
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,104,071
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
14 TYPE OF REPORTING PERSON
OO
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Dale Chappell
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
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) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER 7 SOLE VOTING POWER
OF 0
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 7,271,304
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH 10 SHARED DISPOSITIVE POWER
7,271,304
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,271,304
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.7%
14 TYPE OF REPORTING PERSON
IN
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Brian Sheehy
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X| (b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF, PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER 7 SOLE VOTING POWER
OF 61,397
SHARES
BENEFI- 8 SHARED VOTING POWER
CIALLY 7,271,304
OWNED
BY EACH 9 SOLE DISPOSITIVE POWER
REPORTING 61,397
PERSON
WITH 10 SHARED DISPOSITIVE POWER
7,271,304
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,332,701
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.7%
14 TYPE OF REPORTING PERSON
IN
This Amendment No. 4 is filed with respect to the shares of the common
stock, $0.01 par value (the "Common Stock"), of Metromedia International Group,
Inc., a Delaware corporation ("Issuer"), beneficially owned by the Reporting
Persons (as defined below) as of December 18, 2006 and amends and supplements
the Schedule 13D filed originally on October 10, 2006, as amended and/or
restated on October 20, 2006, November 22, 2006 and December 8, 2006
(collectively, the "Schedule 13D"). Except as set forth herein, the Schedule 13D
is unmodified.
Item 2. Identity and Background
(a). NAME
The names of the persons filing this statement on Schedule 13D are:
(i) The "Esopus Reporting Persons:"
- Esopus Creek Value LP ("Esopus Fund")
- Esopus Creek Advisors LLC ("Esopus Advisors")
- Andew L. Sole ("Mr. Sole")
- Joseph S. Criscione ("Mr. Criscione")
(ii) The "Black Horse Reporting Persons:"
- Black Horse Capital LP ("BH Domestic Fund"),
- Black Horse Capital (QP) LP ("BH QP Fund"),
- Black Horse Capital Offshore Ltd. ("BH Offshore Fund"),
- Black Horse Capital Management LLC ("BH Management"),
- Black Horse Capital Advisors LLC ("BH Advisors"),
- Dale Chappell ("Mr. Chappell") and
- Brian Sheehy ("Mr. Sheehy").
The Esopus Reporting Persons and the Black Horse Reporting Persons shall
collectively be referred to as the "Reporting Persons." D. E. Shaw Laminar
Portfolios, L.L.C., D. E. Shaw & Co., L.P., D. E. Shaw & Co., L.L.C. and David
E. Shaw (collectively, "D. E. Shaw Reporting Persons") shall no longer be deemed
Reporting Persons in this Schedule 13D as they are no longer acting in concert
with the Reporting Persons and will file a separate Schedule 13D. Each of the
Reporting Persons is responsible for the completeness and accuracy of the
information concerning him or it contained herein, but is not responsible for
the completeness and accuracy of the information concerning the others, except
to the extent that he or it knows or has reason to believe that such information
is inaccurate.
(b). RESIDENCE OR BUSINESS ADDRESS
(i) The principal business address for each of the Esopus
Reporting Persons is 500 Fifth Avenue, Suite 2620, New York, New York
10110.
(ii) The principal business address for each of BH Domestic Fund,
BH QP Fund, BH Management, BH Advisors, Mr. Chappell and Mr. Sheehy is
45 Rockefeller Plaza, 20th Floor, New York, New York 10111. The
principal business address of BH Offshore Fund is c/o M&C Corporate
Services Limited, P.O. Box 309GT, Ugland House, South Church Street,
George Town, Grand Cayman, Cayman Islands.
(c). PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL
BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH
EMPLOYMENT IS CONDUCTED
(i) Esopus Fund is a private investment fund that invests on
behalf of institutions and high net worth individuals. The principal
business of Esopus Advisors is to serve as the general partner of
Esopus Fund. The principal business of each of Mr. Sole and Mr.
Criscione is to serve as a managing member of Esopus Advisors and as
portfolio managers to the Esopus Fund and other affiliated entities.
(ii) The principal business of each of BH Domestic Fund, BH QP
Fund and BH Offshore Fund is that of a private investment fund engaged
in the purchase and sale of securities for its own account. The
principal business of BH Advisors is providing investment management
services. The principal business of BH Management is serving as the
managing general partner of BH Domestic Fund and BH QP Fund. The
principal occupation of Mr. Chappell and Mr. Sheehy is serving as the
managing members of BH Advisors and BH Management. The Directors and
Executive Officers of the BH Offshore Fund are set forth on Appendix
III which was previously filed with this Schedule 13D and is
incorporated herein by reference.
(d), (e). CRIMINAL CONVICTIONS; CIVIL PROCEEDINGS
During the last five years, none of the Reporting Persons have: (i) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations or prohibiting activities subject to federal or state securities laws
or finding any violation of such laws.
(f). CITIZENSHIP
(i) Esopus Fund is a Delaware limited Partnership. Esopus
Advisors is a Delaware limited liability company. Each of Mr. Sole and
Mr. Criscione is a citizen of the United States.
(ii) Each of BH Domestic Fund and BH QP Fund are Delaware limited
partnerships. Each of BH Management and BH Advisors is a Delaware
limited liability company. BH Offshore Fund is a Cayman Islands
exempted company. Messrs. Chappell and Sheehy are United States
citizens.
Item 3. Source and Amount of Funds or Other Consideration
(a) Esopus Fund allocated approximately $5,487,858 to acquire its
shares of Common Stock. The funds used to purchase the shares of Common
Stock were obtained from a combination of the general working capital of
the Esopus Fund and margin account borrowings made in the ordinary course
of business, although Esopus Fund cannot determine whether any funds
allocated to purchase the Issuer's Common Stock were obtained from any
margin account borrowings.
(b) The total amount of funds allocated by the Black Horse Reporting
Persons to acquire the shares of Common Stock and preferred stock owned by
them was $16,376,549. Each of BH Domestic Fund, BH QP Fund and BH Offshore
Fund used its own assets to purchase such shares, which may at any given
time include funds borrowed in the ordinary course in their margin
accounts. Mr. Sheehy used his personal funds to acquire the securities he
owns directly.
Item 4. Purpose of Transaction
On October 18, 2006, the Black Horse Reporting Persons became a party to a
verbal, non-binding agreement (originally entered into on October 5, 2006) among
the Esopus Reporting Persons and others who are no longer parties to such
agreement (the "Shareholder Group"), pursuant to which the parties agreed to
oppose the proposed sale and bankruptcy transaction involving Salford Gerogia
and others (the "Proposed Transaction") and to support nominations for directors
and proposals submitted by the Esopus Fund to be voted on at the 2006 Annual
Meeting of Stockholders held on December 15, 2006. The nominees and proposals
were later withdrawn by the Esopus Fund after the court rulings and termination
of the Proposed Transaction, each as described below.
On October 18, 2006, the Esopus Fund brought an action against the Issuer
in Delaware Chancery Court to enjoin the Proposed Transaction based upon its
belief that the Issuer's intention to commit or consummate the Proposed
Transaction prior to the 2006 Annual Meeting would have violated the Delaware
Chancery Court's prior order (stipulated between the Esopus Fund and the Issuer)
to conduct an annul meeting for the election of directors on December 15, 2006.
On October 19, 2006, the Esopus Fund and the Black Horse Funds brought a
separate action in the Delaware Chancery Court against the Issuer and the
Issuer's Board of Directors (excluding William F. Harley III, who joined the
Board of Directors following the announcement of the Proposed Transaction) also
seeking to enjoin the Proposed Transaction based upon alleged breaches of
fiduciary duties of care and loyalty and violation of Section 271 of the
Delaware General Corporation Law requiring a shareholder vote for such an asset
sale.
The above lawsuits were consolidated and a hearing took place on November
22, 2006. Vice Chancellor Stephen P. Lamb of the Delaware Chancery Court issued
an order (the "Order"), dated November 29, 2006, pursuant to which it was
ordered, among other things, that the Issuer, its defendants, officers and other
individuals identified in the Order, and those persons in active concert or
participation with them, not enter into a definitive agreement providing for the
sale of all or substantially all of the assets of the Issuer, including the
Issuer's subsidiary Metromedia International Telecommunications, Inc. and/or the
Issuer's direct or indirect interest in Magticom Ltd. (an "Asset Sale
Agreement"), unless consummation of such Asset Sale Agreement is subject to a
vote of the common stockholders of the Issuer pursuant to Delaware corporate law
(8 Del. C. ss. 271). Pursuant to the Order, in the event the Issuer enters into
an Asset Sale Agreement, among other things, (i) the Issuer and its Board of
Directors shall call a meeting of the common stockholders of the Issuer,
consistent with the notice provision of 8 Del. C. ss. 271; (ii) the Issuer shall
distribute to its stockholders, in advance of such meeting, a notice advising
the Issuer's common stockholders of the date, time and place of the meeting and
their right to vote on the Proposed Transaction and all information required
under Delaware law necessary to ensure an informed vote on the Proposed
Transaction and at such meeting the common stockholders shall have the
opportunity to vote on the Proposed Transaction; and (iii) the Asset Sale
Agreement shall not be consummated unless and until the Proposed Transaction has
been approved by a vote of the common stockholders of Metromedia as required by
8 Del. C. ss.271 and the company's Restated Certificate of Incorporation. A copy
of the Order is attached to the Form 8-K filed by the Issuer on November 30,
2006.
On November 18, 2006, the Issuer announced the abandonment of the Proposed
Transaction. On December 15, 2006, the Issuer announced the termination of the
Lock-up and Voting Agreements previously entered into between the Issuer and
representatives of approximately 80% of the holders of the Issuer's preferred
stock. If the Issuer announces a new proposed transaction that proposes to sell
substantially all of the assets of the Issuer and such newly proposed
transaction is not structured in a manner acceptable to the Reporting Persons,
the Reporting Persons reserve the right to solicit proxies to oppose such new
transaction. The Reporting Persons have also urged the Issuer to complete and
release its audited financial statements for 2005, to release unaudited
financial statements for 2006, and to make the appropriate securities filings
with the Securities and Exchange Commission for such periods.
The Reporting Persons also reserve the right to engage in a proxy
solicitation with respect to the election of directors or any other proposed
sale or similar transaction at a future date and to continue to acquire and/or
dispose of securities of the Issuer, to pursue litigation against the Issuer,
its directors and/or its officers, to recommend to management strategic
alternatives, and to take any other appropriate actions in furtherance of their
interests as stockholders of the Issuer.
Item 5. Interest in Securities of the Issuer
(a). (i) The Esopus Reporting Persons beneficially own 3,830,000
shares of Common Stock, representing 4.1% of the outstanding shares of
Common Stock.
(ii) The Black Horse Reporting Persons beneficially own 7,332,701
shares of Common Stock representing 7.7% of the outstanding shares of
Common Stock.
BH Domestic Fund, BH QP Fund, BH Offshore Fund (collectively, the "Black
Horse Funds") and Mr. Sheehy own directly 4,119,335, 1,526,047, 1,009,599 and
58,600 shares of Common Stock, respectively, and 120,970, 35,742, 28,370 and 840
shares of Preferred Stock, par value $1.00 per share (the "Preferred Stock"), of
the Issuer, respectively, representing (on an as converted to Common Stock
basis) approximately 4.8%, 1.7%, 1.2% and less than 0.1% of the shares of Common
Stock outstanding. BH Advisors, in its capacity as investment advisor to the BH
Offshore Fund and as a result of certain relationships among the Black Horse
Funds and their affiliates, may be deemed to be the beneficial owner of the
7,332,701 shares of Common Stock held directly by the Black Horse Funds and Mr.
Sheehy, constituting 7.7% of the shares of Common Stock outstanding. BH
Management, in its capacity as the general partner of the BH Domestic Fund and
the BH QP Fund and as a result of certain relationships among the Black Horse
Funds and their affiliates, may be deemed to be the beneficial owner of the
7,332,701 shares of Common Stock held directly by the Black Horse Funds and Mr.
Sheehy, constituting 7.7% of the shares of Common Stock outstanding.
Messrs. Chappell and Sheehy, in their capacity as managing members of BH
Advisors and BH Management and directors of the BH Offshore Fund and as a result
of certain relationships among the Black Horse Funds and their affiliates, may
be deemed to be the beneficial owners of the 7,332,701 shares of Common Stock
held directly by the Funds and Mr. Sheehy, constituting 7.7% of the shares of
Common Stock outstanding.
The Reporting Persons may be deemed to be members of a "group" within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Act"). As such, the group may be deemed to beneficially own (as that term
is defined in Rule 13d-3 under the Act) all of the shares of Common Stock
beneficially owned by the other Reporting Persons. Collectively, the Reporting
Persons beneficially own 11,162,701, representing 11.7% of all the issued and
outstanding shares of Common Stock.
(b). (i) Mr. Sheehy who has the sole power to vote or direct the vote
or to dispose or direct the disposition of the 58,600 shares of Common
Stock and the 840 shares of Preferred Stock that he owns directly.
The Black Horse Reporting Persons have the shared power to vote or
direct the vote or to dispose or direct the disposition of the
remaining 6,654,981 shares of Common Stock and 185,082 shares of
Preferred Stock owned by the Black Horse Funds.
(ii) The Esopus Reporting Persons share the power to vote and to
direct the vote and the power to dispose and to direct the disposition
of the 3,830,000 shares of Common Stock held by Esopus Fund.
(c). A list of the transactions in the Issuer's Common Stock that were
effected by the Reporting Persons during the past sixty days is attached as
Appendix I.
(d). No person other than the Reporting Persons and the investment funds
and accounts under their management is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
the Shares.
(e). The D. E. Shaw Reporting Persons ceased to be Reporting Persons with
the Esopus Reporting Persons and the Black Horse Reporting Persons hereunder on
December 15, 2006. The D. E. Shaw Reporting Persons shall make their own
Schedule 13D filing separately.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
On December 15, 2006, the D. E. Shaw Reporting Persons withdrew from the
Shareholders Group.
Each of the Black Horse Funds from time to time may enter into and unwind
cash settled equity swap or other similar derivative transactions with respect
to the shares of Common Stock. These arrangements do not and will not give the
Black Horse Reporting Persons voting or investment control over such shares to
which these transactions relate and, accordingly, the Black Horse Reporting
Persons disclaim beneficial ownership of any such Shares.
Item 7. Material to Be Filed as Exhibits
The following documents are filed as exhibits:
Appendix I: List of the transactions in the Issuer's Common Stock that were
effected by the Reporting Persons during the past sixty days.
Appendix II: Joint Filing Agreement.
Signature
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.
Dated: December 19, 2006
ESOPUS CREEK VALUE LP
By: Esopus Creek Advisors LLC,
as General Partner
By: /s/ Andrew L. Sole
-----------------------------------
Andrew L. Sole, Managing Member
ESOPUS CREEK ADVISORS LLC
By: /s/ Andrew L. Sole
-----------------------------------
Andrew L. Sole, Managing Member
/s/ Andrew L. Sole
--------------------------------
Andrew L. Sole
/s/ Joseph S. Criscione
--------------------------------
Joseph S. Criscione
BLACK HORSE CAPITAL LP
By: Black Horse Capital Management LLC,
As General Partner
By: /s/ Dale Chappell
----------------------------------
Dale Chappell, Managing Member
BLACK HORSE CAPITAL (QP) LP
By: Black Horse Capital Management LLC,
As General Partner
By: /s/ Dale Chappell
----------------------------------
Dale Chappell, Managing Member
BLACK HORSE CAPITAL OFFSHORE LTD.
By: /s/ Dale Chappell
----------------------------------
Dale Chappell, Director
BLACK HORSE CAPITAL MANAGEMENT LLC
By: /s/ Dale Chappell
----------------------------------
Dale Chappell, Managing Member
BLACK HORSE CAPITAL ADVISORS LLC
By: /s/ Dale Chappell
----------------------------------
Dale Chappell, Managing Member
/s/ Dale Chappell
-----------------
Dale Chappell
/s/ Brian Sheehy
-----------------
Brian Sheehy
APPENDIX I
TRANSACTIONS EFFECTED DURING THE PAST SIXTY DAYS
Transactions Effected by Black Horse Capital LP
Date of Amount of Price per share Where and how the
transaction securities or unit transaction
Bought/(Sold) (excluding was effected
commissions)
--------------------------------------------------------------------
12/08/06 10,834 $1.5000 U.S. OTC Market
12/08/06 30,956 $1.5243 U.S. OTC Market
12/11/06 3,962 $1.5766 U.S. OTC Market
12/11/06 129,085 $1.5700 U.S. OTC Market
Transactions Effected by Black Horse Capital (QP) LP.
Date of Amount of Price per share Where and how the
transaction securities or unit transaction
Bought/(Sold) (excluding was effected
commissions)
--------------------------------------------------------------------
12/08/06 4,011 $1.5000 U.S. OTC Market
12/08/06 11,459 $1.5243 U.S. OTC Market
12/11/06 1,467 $1.5766 U.S. OTC Market
12/11/06 47,786 $1.5700 U.S. OTC Market
Transactions Effected by Black Horse Capital Offshore Ltd.
Date of Amount of Price per share Where and how the
transaction securities or unit transaction
Bought/(Sold) (excluding was effected
commissions)
--------------------------------------------------------------------
12/08/06 2,655 $1.5000 U.S. OTC Market
12/08/06 7,585 $1.5243 U.S. OTC Market
12/11/06 971 $1.5766 U.S. OTC Market
12/11/06 31,629 $1.5700 U.S. OTC Market