SunLink Health Systems, Inc.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2 )*
SunLink
Health Systems, Inc.
(Name of Issuer)
Common Stock, without par value
(Title of Class of Securities)
(CUSIP Number)
Jared
S. Bluestein
Berggruen Holdings North America Ltd.
1114 Avenue
of the Americas, 41st Floor
New York, New York 10036
(212)
380-2235
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
-with a copy
to-
Clifford E. Neimeth, Esq.
Greenberg Traurig, LLP
The
MetLife Building
200 Park Avenue
New York, NY 10166
(212)
801-9200
(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. þ
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 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).
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Berggruen Holdings North America Ltd. |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
British Virgin Islands
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
-0- (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
704,039 (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
-0- (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
704,039 (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (see Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
CO |
2
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Medici I Investments Corp. |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
British Virign Islands
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
-0- (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
704,039 (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
-0- (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
704,039 (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (See Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
CO |
3
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Berggruen Holdings Ltd. |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
British Virgin Islands
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
-0- (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
704,039 (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
-0- (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
704,039 (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (See Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
CO |
4
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Tarragona Trust |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
British Virgin Islands
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
-0- (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
704,039 (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
-0- (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
704,039 (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (See Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
OO |
5
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Nicolas Berggruen |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
United States
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
-0- (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
704,039 (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
-0- (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
704,039 (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (See Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
IN |
6
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Resurgence Health Group, LLC |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
Georgia, United States
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
-0- (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
-0- (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
-0- (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
-0- (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (See Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
OO |
7
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Philip H. Eastman, III |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
United States
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
100 (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
-0- (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
100 (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
-0- (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (See Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
IN |
8
|
|
|
|
|
|
1 |
|
NAMES OF REPORTING PERSONS
Anne S. Thompson |
|
|
|
|
|
|
2 |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
|
(a) þ |
|
(b) o |
|
|
|
3 |
|
SEC USE ONLY |
|
|
|
|
|
|
|
4 |
|
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
|
|
OO |
|
|
|
5 |
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
|
|
|
o |
|
|
|
6 |
|
CITIZENSHIP OR PLACE OF ORGANIZATION |
|
|
|
United States
|
|
|
|
|
|
7 |
|
SOLE VOTING POWER |
|
|
|
NUMBER OF |
|
-0- (See Item 5) |
|
|
|
|
SHARES |
8 |
|
SHARED VOTING POWER |
BENEFICIALLY |
|
|
OWNED BY |
|
-0- (See Item 5) |
|
|
|
|
EACH |
9 |
|
SOLE DISPOSITIVE POWER |
REPORTING |
|
|
PERSON |
|
-0- (See Item 5) |
|
|
|
|
WITH |
10 |
|
SHARED DISPOSITIVE POWER |
|
|
|
|
|
-0- (See Item 5) |
|
|
|
11 |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
|
|
|
704,139 (See Item 5) |
|
|
|
12 |
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
|
|
|
o
|
|
|
|
13 |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
|
|
9.4% |
|
|
|
14 |
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
|
|
|
IN |
9
Explanatory Note: This Amendment No. 2 relates to and amends the Statement of Beneficial
Ownership on Schedule 13D of Berggruen Holdings North America Ltd., a British Virgin Islands
(BVI) business company (Berggruen), Medici I Investments Corp., a BVI business
company, Berggruen Holdings Ltd., a BVI business company, Tarragona Trust, a BVI trust, Nicolas
Berggruen, a United States citizen, Resurgence Health Group, LLC, a Georgia limited liability
company, Philip H. Eastman, III, a United States citizen, and Anne S. Thompson, a United States citizen
(each, a Reporting Person and collectively, the Reporting Persons), initially
filed jointly by the Reporting Persons with the Securities and Exchange Commission (the
SEC) on November 7, 2007 and as amended by Amendment No. 1 thereto filed jointly by the
Reporting Persons with the SEC on December 10, 2007 (as amended, the Statement), with
respect to the Common Stock, without par value (the Common Stock), of SunLink Health
Systems, Inc., an Ohio corporation (the Issuer).
Items
4 and 7 of the Statement are hereby amended to the extent hereinafter expressly set
forth. All capitalized terms used and not expressly defined herein have the respective meanings
ascribed to such terms in the Statement.
Item 4. Purpose of Transaction.
Item 4
of the Statement is hereby amended to add the following:
On January 11, 2008, Sutherland Asbill & Brennan LLP, counsel to Resurgence Health Group,
LLC, submitted to Howard E. Turner, Esq. of Smith Gambrell & Russell, a director of the Issuer and
special counsel to the Special Committee of the Board, a letter dated January 11, 2008, a copy of
which is filed herewith as Exhibit 4 and is incorporated herein in its entirety by
reference.
On January 11, 2008, Berggruen submitted to the Board a letter dated January 11, 2008, a
copy of which is filed herewith as Exhibit 5 and is incorporated herein in its entirety by
reference (the Berggruen Letter). Among other things, the Berggruen Letter stated that a
written demand was concurrently being made to the Issuer, pursuant to Ohio
Revised Code Section 1701.37(C), to inspect certain corporate books and records and other documents
of the Issuer described in the written demand, a copy of which is filed herewith as Exhibit
6 and is incorporated herein in its entirety by reference.
The Reporting Persons intend to review their investment in the Common Stock on a continuing
basis and, from time to time, may engage in further discussions with the Issuers senior executives
and members of the Board concerning the foregoing. The Reporting Persons also intend to
communicate with other shareholders of the Issuer, industry analysts and other constituents
concerning the foregoing and to express their views of the Issuer, its management and the Board.
Depending on various factors including, without limitation, the Issuers financial performance
and strategic direction, the outcome of the discussions and actions referenced above, price levels
of the Common Stock, developments affecting the Issuer and its prospects, conditions in the
securities markets and general economic and industry conditions, the Reporting
10
Persons may in the future consider and take various courses of action with respect to the
Issuer, its Board and its management and their investment in the Issuer, and the Reporting Persons
may exercise any and all of their respective rights as shareholders of the Issuer as they deem
appropriate, including, without limitation, purchasing additional shares of Common Stock or selling
some or all of their shares of Common Stock, engaging in short selling of or any hedging or similar
transactions with respect to the Common Stock, encouraging the Issuer to take action to maximize
shareholder value through one or more strategic transactions and/or otherwise changing its
intention with respect to any and all matters referred to in Item 4 of Schedule 13D.
Except as set forth in the Statement and in this Amendment No. 2, none of the Reporting Persons has any present plans or proposals
that relate to or would result in any of the matters referred to in clauses (a) through (j) of Item
4 of Schedule 13D.
Item 7. Materials to be Filed as Exhibits.
|
|
|
|
|
|
|
Exhibit 1
|
|
Joint Filing Agreement among the Reporting Persons, dated November 7, 2007
(incorporated by reference to Exhibit 1 to the Statement filed by the Reporting
Persons with respect to the Issuer on November 7, 2007). |
|
|
|
|
|
|
|
Exhibit 2
|
|
Limited Power of Attorney, dated June 23, 2006, given by Maitland Trustees
Limited, as trustee of the Tarragona Trust, to Jared Bluestein (incorporated by
reference to Exhibit 2 to the Statement filed by the Reporting Persons with respect
to the Issuer on November 7, 2007). |
|
|
|
|
|
|
|
Exhibit 3
|
|
Limited Power of Attorney, dated August 10, 2007, given by Nicolas Berggruen
to Jared Bluestein (incorporated by reference to Exhibit 3 to the Statement filed
by the Reporting Persons with respect to the Issuer on November 7, 2007). |
|
|
|
|
|
|
|
Exhibit 4
|
|
Letter dated January 11, 2008 from Sutherland Asbill & Brennan LLP to Howard
E. Turner, Esq. of Smith Gambrell & Russell. |
|
|
|
|
|
|
|
Exhibit 5
|
|
Letter dated January 11, 2008 from Berggruen Holdings North America Ltd. to
the Board. |
|
|
|
|
|
|
|
Exhibit 6
|
|
Written Demand to Inspect Books and Records pursuant to Ohio Revised Code
Section 1701.37(C), dated January 11, 2008. |
11
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: January 11, 2008
|
|
|
|
|
|
Berggruen Holdings North America Ltd.
|
|
|
By: |
/s/ Jared S. Bluestein
|
|
|
|
Name: |
Jared S. Bluestein |
|
|
|
Title: |
Director |
|
|
|
Medici I Investments Corp.
|
|
|
By: |
/s/ Jared S. Bluestein
|
|
|
|
Name: |
Jared S. Bluestein |
|
|
|
Title: |
Director |
|
|
|
Berggruen Holdings Ltd.
|
|
|
By: |
/s/ Jared S. Bluestein
|
|
|
|
Name: |
Jared S. Bluestein |
|
|
|
Title: |
Director |
|
|
|
Tarragona Trust
By: Maitland Trustees Limited, as Trustee
|
|
|
By: |
/s/ Jared S. Bluestein
|
|
|
|
Name: |
Jared S. Bluestein |
|
|
|
Title: |
Authorized Signatory |
|
|
|
|
|
|
*
|
|
|
Nicolas Berggruen |
|
|
|
|
|
|
Resurgence Health Group, LLC
|
|
|
By: |
/s/ Philip H. Eastman, III
|
|
|
|
Name: |
Philip H. Eastman, III |
|
|
|
Title: |
Chief Executive Officer |
|
|
|
|
|
|
/s/ Philip H. Eastman, III
|
|
|
Philip H. Eastman, III |
|
|
|
|
|
|
|
|
|
/s/ Anne S. Thompson
|
|
|
Anne S. Thompson |
|
|
|
|
|
|
|
|
* |
|
The undersigned, by signing his name hereto, does sign and execute this Statement pursuant to
the Limited Power of Attorney executed by Nicolas Berggruen filed as
Exhibit 3 to this Statement. |
|
|
|
|
|
|
|
|
Dated: January 11, 2008 |
*By: |
/s/ Jared S. Bluestein, Attorney-in-Fact
|
|
|
|
Jared S. Bluestein |
|
|
|
|
|
|
12
EXHIBIT 4
January 11, 2008
VIA EMAIL (HTurner@SGRLAW.COM)
AND HAND DELIVERY
Howard E. Turner, Esq.
Smith Gambrell & Russell, LLP
Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Suite 3100
Atlanta, GA 30309
|
|
|
Re: |
|
Resurgence Health Group, LLC (Resurgence) Offer to Acquire
SunLink Health Systems, Inc. (SunLink) |
Dear Howard:
We are writing to you in your capacity as Special Counsel to the Special Committee of the
Board of Directors of SunLink (the Board). As you know, on November 7, 2007, Resurgence submitted
a letter to the Board of SunLink, pursuant to which Resurgence offered to purchase in a statutory
merger transaction all of the outstanding shares of common stock of SunLink at a cash price of
$7.50 per share (the Offer). Furthermore, as indicated in the letter and in a Schedule 13D filed
with the United States Securities and Exchange Commission, Berggruen Holdings North America Ltd and
certain of its affiliates (collectively, Berggruen), the second largest shareholder of SunLink,
has teamed with Resurgence and has agreed to provide the equity financing necessary to enable
Resurgence to consummate the transaction.
When the SunLink Board failed to respond substantively to the Offer by December 7, 2007,
Resurgence sent a second letter to the Board, pursuant to which Resurgence expressed its surprise
and frustration with the lack of a substantive response from the Board and requested a meeting with
the Board to discuss the Offer. Additionally, when we spoke about this matter on December 18, 2007
you advised me that the Board had appointed a Special Committee to evaluate the Offer and that we
would get a response in due course. You declined my request for such a meeting and, to my
surprise, you declined to supply me with the names of the directors who comprise the Special
Committee.
Howard E. Turner, Esq.
January 11, 2008
Page 2
Although more than 60 days have passed since the making of the Offer, no response whatsoever
has come either from the Board or the Special Committee. Further, I understand that
representatives of Resurgence and Berggruen have also attempted to initiate communications with
certain Board members regarding the Offer, but have been rebuffed. Our client and Berggruen
understand that Robert Thornton views the Offer as a mere nuisance, indicating that the Board has
not given any serious or substantive consideration to the Offer in derogation of its fiduciary
duties to SunLinks shareholders, despite the fact that the Offer represents a 24% premium above
the market price of SunLinks common stock at a time when SunLinks financial performance and stock
price have been in steady and persistent decline. As such, our client believes the offer
represents a value-maximizing opportunity for the shareholders.
The Boards refusal to take action to become adequately informed regarding the Offer is also
contrary to SunLinks November 8, 2007 press release stating that the Board would consider and
respond to the Offer in a reasonable period of time.
Our client is frustrated with the Boards inaction with respect to the Offer and believes that
such inaction evidences managements desire to remain entrenched at the expense of SunLinks
shareholders. The combination of SunLinks Shareholders Rights Agreement, which was unilaterally
adopted by the Board (without many important Institutional Shareholder Services recommended
features), its classified Board structure and the supermajority vote provisions contained in its
Code of Regulations further underscore our clients concerns about managements priorities and
bring into question whether the Board is complying with its fiduciary duties to act in the best
interests of SunLinks shareholders. Our concerns are amplified by the longstanding close personal
relationships between management and certain Board members. Of even more concern may be
relationships between management and members of the Special Committee. Of course, we cannot assess
this latter matter since we do not know who is on the Special Committee. However, we certainly
hope that there does not exist any relationship which would impugn the integrity and independence
of the Special Committee in this process.
As I believe we discussed when we spoke on December 18, 2007, this should not be a matter that
results in acrimonious, contested and protracted claims. However, please understand that our
client and its partner Berggruen have not made the offer to create a nuisance; in fact, they are
very serious about pursuing this acquisition. A continuation of the Boards tactic of
stonewalling will not cause our clients to walk away from this transaction. We strongly urge
the Board to proceed in good faith, consistent with its fiduciary duties to SunLinks
shareholders. Accordingly, our client again requests a meeting with the Special Committee to
discuss the Offer as soon as possible.
Howard E. Turner, Esq.
January 11, 2008
Page 3
We would appreciate hearing from you promptly so that we can proceed to the next step in this
process, and we look forward to working with you in the near future.
|
|
|
cc: |
|
Mr. Jared S. Bluestein
(Berggruen Holdings North America Ltd.)
Clifford Neimeth, Esq. (Greenberg Traurig)
Clifford Roe, Esq. (Dinsmore & Stohl)
Mr. Philip H. Eastman, III
Ms. Anne S. Thompson |
EXHIBIT 5
BERGGRUEN HOLDINGS NORTH AMERICA LTD.
1114 Avenue of the Americas, 41st Floor
New York, New York 10036
(212) 380-2235
January 11, 2008
BY FACSIMILE AND OVERNIGHT MAIL
The Board of Directors
SunLink Health Systems, Inc.
900 Circle 75 Parkway, Suite 1120
Atlanta, Georgia 30339
Ladies and Gentlemen:
As you are aware, Berggruen Holdings North America Ltd. (Berggruen) is the beneficial owner
of 704,139 shares of common stock, without par value (the Common Stock), of SunLink Health
Systems, Inc. (SunLink), representing approximately 9.4% of the outstanding shares of Common
Stock.
We are in receipt of the letter dated January 11, 2008, from Sutherland Asbill & Brennan LLP,
counsel to Resurgence Health Group, LLC (Resurgence), to Howard E. Turner, Esq., a copy of which
accompanies this letter. As your second largest shareholder, we are appalled by the matters
referred to in that letter.
In short, we are extremely disappointed that more than two months have elapsed since
Resurgence submitted on November 7, 2007 its $7.50 per share, substantial 24% premium offer, backed
by us, to effect a cash merger transaction that would result in immediate liquidity and maximum
value for all of your shareholders, while you, the Board, continue to watch SunLinks business,
financial performance and stock price stagnate and deteriorate. At a minimum, we would have
thought that even your most basic adherence to your fiduciary duties to all of your shareholders
would have required you, the Board, to respond to our repeated requests to you and executive
management to meet with us and Resurgence to become fully informed about our offer. Instead, you
have chosen to substantively ignore our offer in disregard of your fiduciary duties and contrary to
your own public statements that you, the Board, would consider and respond to the offer in a
reasonable period of time (see your own Current Report on Form 8-K dated November 7, 2007 and your
press release dated November 8, 2007 filed therewith).
It belies good faith, if not common courtesy, for you to remain silent for more than two
months and give no good faith consideration whatsoever to the offer or to even attempt to
substantively respond thereto, taking into account the best interests of all of your shareholders.
We are deeply concerned about the composition of your so-called Special Committee. While we
have been unable to identify the members thereof (because you have not publicly disclosed their
identity), in view of the material business, social and personal relationships that exist among
various SunLink directors and senior management, including the personal relationship between Howard
E. Turner (supposed independent counsel to the Special Committee) and executive management, we
seriously question the independence of such committee and its legal advisors.
Notwithstanding your failure to initiate any process or undertake any dialogue with Resurgence
or us to date to better understand the offer, we and Resurgence remain prepared to meet with you,
the Board, and SunLinks executive management as soon as possible to discuss the offer in detail
and to fully and openly respond to all questions you might (and, in accordance with your fiduciary
duties, should) have regarding the offer.
We urge you to act not in your own self-interests or in a manner beholden to management, but
instead, in the best interests of all of your shareholders by contacting us promptly and meeting
with us as soon as possible.
On behalf of all SunLink shareholders, we demand that a true and legitimate independent
committee of SunLink directors, with independent outside professional advisors, be established to
properly evaluate our offer, advise the Board of its fiduciary duties and act in the best interests
of all SunLink shareholders.
To facilitate and better communicate with fellow SunLink shareholders regarding SunLinks
business, affairs and management, submitted herewith under separate cover is a written demand,
pursuant to Ohio Revised Code Section 1701.37(C), to inspect the books and records and other
documents of SunLink described therein.
We expect to hear from you promptly and look forward to meeting with each of you and with
management as soon as possible.
|
|
|
|
|
|
Very truly yours,
Berggruen Holdings North America Ltd.
|
|
|
By: |
/s/ Jared Bluestein
|
|
|
|
Name: |
Jared Bluestein |
|
|
|
Title: |
Chief Operating Officer |
|
|
|
|
|
cc: |
|
Robert M. Thornton, Jr., CEO
SunLink Health Systems, Inc.
|
|
|
|
|
|
Philip H. Eastman, III, President
Resurgence Health Group, LLC
|
|
|
|
|
|
Clifford E. Neimeth, Esq.
Greenberg Traurig, LLP
|
|
|
|
|
|
Clifford Roe, Esq.
Dinsmore & Shohl, LLP
|
|
|
|
|
|
Charles Ganz, Esq.
Sutherland Asbill and Brennan |
EXHIBIT 6
Cede & Co.
c/o The Depository Trust Company
55 Water Street
New York, NY 10041
January 11, 2008
BY FACSIMILE AND CERTIFIED MAIL
SunLink Health Systems, Inc.
900 Circle 75 Parkway, Suite 1120
Atlanta, Georgia 30339
Attention: Secretary
|
|
|
Re:
|
|
Written Demand to Inspect Books and Records |
|
|
Pursuant to Ohio Revised Code Section 1701.37(C) |
Ladies and Gentlemen:
Cede & Co., the nominee of the Depository Trust Company (DTC), is a shareholder of record of
shares of common stock, without par value (the Common Stock), of SunLink Health Systems, Inc., an
Ohio corporation (SunLink). DTC is informed by its participant, Goldman Sachs & Co. Inc.
(GSCO), that on the date hereof 704,039 of such shares of Common Stock (the Shares) credited to
GSCOs DTC account are beneficially owned by Berggruen Holdings North America Ltd. (Berggruen).
Cede & Co. have been informed by GSCO who was informed by their client Berggruen that the Shares
represent approximately 9.4% of the outstanding shares of Common Stock.
At the request of GSCO on behalf of Berggruen, Cede & Co., as shareholder of record of the
Shares, hereby demands the right, pursuant to Ohio Revised Code (ORC) Section 1701.37(C), during
the usual hours for business, to inspect, in person or by agents or attorneys, the following
documents of SunLink and to make copies or extracts therefrom:
1. All minutes of the incorporators, shareholders, directors, officers, committees of
directors and all other minutes which are required to be kept as correct and complete records of
SunLink under ORC Section 1701.37(A), including, but not limited to, the following: (a) all minutes
of the Audit Committee of SunLinks Board of Directors, (b) all minutes of the Executive Committee
of SunLinks Board of Directors, (c) all minutes of the Executive Compensation Committee of
SunLinks Board of Directors, (d) all minutes of the Special Committee of SunLinks Board of
Directors formed as a result of the offer letter from Resurgence Health Group, LLC dated
November 7, 2007, (e) all minutes with respect to the adoption in February 2004, and the
maintenance to date, of SunLinks Shareholder Rights Agreement, dated February 8, 2004, (f) all
minutes of all Nominating Committees of SunLinks Board of Directors and (g) all minutes of all
officers of SunLink;
2. The Articles and Code of Regulations of SunLink, in each case as amended through and
including the date hereof and as may be subsequently amended from and after the date hereof;
3. The records of SunLinks shareholders (including all records setting forth the record and
beneficial owners thereof, including all NOBO and COBO lists, to the extent in SunLinks
possession), as of the most recent practicable date, showing their names and addresses and the
number and class of shares of capital stock of SunLink issued or transferred of record to or by
them from time to time;
4. The complete and correct books and records of account of SunLink, required to be kept under
ORC Section 1701.37(A), including, but not limited to, the following: (a) all records of SunLinks
internal control and disclosure control practices, policies and procedures, and all corporate,
management and Audit Committee assessments thereof, (b) SunLinks corporate governance policies and
codes, all as described and attested to in SunLinks periodic reports and proxy statements filed
with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended,
(c) all records in connection with the administration of SunLinks Code of Conduct, including all
records of the enforcement thereof, (d) all management letters from SunLinks auditors and (e) all
records containing the names and home addresses of each of the members of the Board of Directors of
SunLink; and
5. Voting trust agreements, if any, on file with SunLink.
Cede & Co. has also been advised by Berggruen that the specific purpose for requesting the
opportunity to examine the above described documents is to facilitate and enable Berggruen to
better communicate with fellow SunLink shareholders regarding SunLinks business, affairs and
management.
Cede & Co. hereby requests that this examination be conducted at the earliest mutually
convenient time and place. Cede & Co. hereby designates and authorizes Clifford E. Neimeth, Esq.
of Greenberg Traurig, LLP, The MetLife Building, 200 Park Avenue, New York, New York 10166, outside
counsel to Berggruen, and/or any other person or persons designated by him, to conduct the
examination and copying herein demanded. It is requested that Mr. Neimeth and/or his designee be
given access to all such books and records as they exist in the State of Georgia or in any other
state or jurisdiction and that they have sufficient opportunity to examine and copy the records.
Please contact Mr. Neimeth of Greenberg Traurig, LLP at (212) 801-9383 as soon as possible to
coordinate this examination.
2
While Cede & Co., is furnishing this demand as the shareholder of record of the Shares, it
does so at the request of GSCO on behalf of Berggruen and only as a nominal party for the true
party in interest, Berggruen. Cede & Co. has no interest in this matter other than to take those
steps that are necessary to ensure that Berggruen is not denied its rights under Ohio law as the
beneficial owner of the Shares, and Cede & Co. assumes no further responsibility in this matter.
Please direct any questions regarding this written demand pursuant to ORC Section 1701.37(C)
to Clifford E. Neimeth, Esq. of Greenberg Traurig, LLP at the above-referenced address and
telephone number.
|
|
|
|
|
|
Very truly yours,
Cede & Co.
|
|
|
By: |
/s/ Peter J. Gleeson
|
|
|
|
Name: |
Peter J. Gleeson |
|
|
|
Title: |
Partner |
|
|
|
|
|
cc:
|
|
Jonathan R. Shapiro |
|
|
Goldman Sachs & Co. Inc. |
|
|
|
|
|
Jared Bluestein, Chief Operating Officer |
|
|
Berggruen Holdings North America Ltd. |
|
|
|
|
|
Philip H. Eastman, III, President |
|
|
Resurgence Health Group, LLC |
|
|
|
|
|
Clifford E. Neimeth, Esq. |
|
|
Greenberg Traurig, LLP |
|
|
|
|
|
Clifford Roe, Esq. |
|
|
Dinsmore & Shohl, LLP |
|
|
|
|
|
Charles Ganz, Esq. |
|
|
Sutherland Asbill and Brennan |
3